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HORNBOOK  CASE  SERIES 

ILLUSTRATIVE 
CASES  ON  DAMAGES 


By  ROGER  W.  COOLEY 

Professor  of  Law,  University  of  North  Takota 
Author  of  "Briefs  on  the  Law  of  Insurance."  "Illustrative  Cases  on  Persons 
AND  Domestic  RELATIONS.-  and  "Illustrative  Cases  on  Insurance 


A  COMPANION  BOOK  TO  HALE  ON  DAMAGES  (2d  Ed.) 


St.  Paul,  Minn. 

WEST  PUBLISHING  CO. 

1913 


Copyright,   1913 

BY 
WEST  PUBLISHING  COMPANY 

(Cooi.EY  Dam.) 


T 

I9i3 


OS 


u. 

h 


THE  ILLUSTRATIVE  CASEBOOK 

SERIES 


It  is  the  purpose  of  the  publishers  to  supply  a  set  of  Illustrative 
Casebooks  to  accompany  the  various  volumes  of  the  Hornbook  Series, 
to  be  used  in  connection  with  the  Hornbooks  for  instruction  in  the 
classroom.  The  object  of  these  Casebooks  is  to  illustrate  the  prin- 
ciples of  law  as  set  forth  and  discussed  in  the  volumes  of  the  Horn- 
book Series.  The  text-book  sets  forth  in  a  clear  and  concise  manner 
the  principles  of  the  subject;  the  Casebook  shows  how  these  princi- 
ples have  been  applied  by  the  courts,  and  embodied  in  the  case  law. 
With  instruction  and  study  along  these  lines,  the  student  should  se- 
cure a  fundamental  knowledge  and  grasp  of  the  subject.  The  cases 
on  a  particular  subject  are  sufficiently  numerous  and  varied  to  cover 
the  main  underlying  principles  and  essentials.  Unlike  casebooks 
prepared  for  the  "Case  Method"  of  instruction,  no  attempt  has  been 
made  to  supply  a  comprehensive  knowledge  of  the  subject  from  the 
cases  alone.  It  should  be  remembered  that  the  basis  of  the  instruc- 
tion is  the  text-book,  and  that  the  purpose  of  these  Casebooks  is  to 
illustrate  the  practical  application  of  the  principles  of  the  law. 

West  Publishing  Company. 
(iil)* 


7292^^1 


TABLE  OF   CONTENTS 


GENERAL  PRINCIPLES 

L    Theory  of  Damages.  I'ag* 

1.     Compensation  the  Rule 1 

II.    Wrong  and  Damage. 

1.     Damnum  Absque  Injuria 3 

NOMINAL  DAMAGES 
L    General  Nature. 

1.  Actual  Loss  not  Proved 8 

2.  De  Minimis  Non  Curat  Lex 10 

3.  Nominal  Damages  Establish  Rights 13 

4.  New  Trials  and  Costs ItJ 

COMPENSATORY  DAMAGES 
L    Direct  Losses. 

1.  In  Tort    20 

2.  In  Contract    24 

II.    Comsequential  Losses. 

1.  Proximate  and  Remote  Consequential  Losses 27 

2.  Consequential  Damages  for  Torts 35 

3.  Consequential  Damages  for  Breach  of  Contract 39 

(a)  In   General 39 

(b)  Damages  Arising  under  Ordinary  Circumstanci^s 42 

(c)  Damages   Arising    from   Circumstances   not    Contem- 

plated   48 

(d)  Notice  of  Special  Circumstances 53 

III.     Avoidable    Consequences 62 

IV.     The  Required  Certainty  of  Damages 70 

Y.     Same — Profits  or  Gains  Prevented 74 

VI.     Entirety  of  Demand 80 

VII,    Time  to  Which  Compensation  may  be  Recovered — Past  and  Future 

Losses    SI 

1.  Continuing    Contracts 81 

2.  Continuing  Torts 88 

3.  Damages  Caused  by  Permanent  Structures 94 

VIII.     Elements  of  Compensation — Physical  Pain  and  luconvonience. . . .  102 

IX.     Same — Mental  Suffering 107 

1.  As  the  Basis  of  a  Cause  of  Action 107 

2.  In  Actions  of  Tort 110 

3.  In  Actions  om  Contract 112 

X.     Aggravation  and  Mitigation  of  Damages 12(5 

XI.     Reduction  of  Loss 128 

XII.     Injuries  to  Limited  Interests 1.'?.3 

1.  Interests  in  Real  Property  in  Possession 133 

2.  Interests  of  Mortgagor  and  Morlg;igc(? 134 

3.  Joint   Interests 13G 

CooLKY  Dam.  (v) 


Vi  TABLE  OP  CONTENTS 


BONDS,  LIQUIDATED  DAMAGES,  AND  ALTERNATIVE  CONTRACTS 

Page 

I.     Liquidated  Damages  and  Penalties — Rules  of  Construction 139 

II.    Alternative    Contracts 149 

INTEREST 

I.     Pecuniary  Losses — Liquidated  Demands 151 

II.     Pecuniary  Losses — Unliquidated  Demands 152 

VALUE 

I,     How  Estimated 165 

II.     Market  Value 167 

III.  Value  Peculiar  to  Owner 171 

IV.  Highest  Intermediate  Value 174 

EXEMPLARY  DAMAGES 

I.    When  Recoverable 182 

1.  In  General 182 

2.  Torts  W^hich  are  also  Crimes 189 

II.     Liability  of  Principal  for  Act  of  Agent 190 

PLEADING  AND  PRACTICE 

I.     Allegation  of  Damage — The  Ad  Danuium 199 

TI.     Allegation  of  Damage — Form  of  Statement 200 

III.     Province  of  Court  and  Jury 204 

BREACH  OF  CONTRACTS  FOR  SALE  OF  GOODS 

I.     Action  by  Seller — Damages  for  Nonacceptance 210 

II.     Action  by  Buyer — Damages  for  Nondelivery 213 

HI.     Same — Damages  for  Breach  of  Warranty 215 

DAMAGES  IN  ACTIONS  AGAINST  CARRIERS 

I.     Carriers  of  Goods— Damages  for  Loss  or  Nondelivery 216 

II.     Same — Damages  for  Delay 218 

HI.     Carriers  of  Passengers — Wrongful  Ejection 221 

DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES 

I.     Compensatory  Damages — Proximate  and  Certain  Damages 228 

II.     Same — Remote  and  Speculative  Damages 230 

III.  Same — Damages  Not  Within  Contemplation  of  Parties — Notice  of 

Purpose  and  Importance  of  Message 232 

IV.  Same — Cipher   Messages 237 

DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

I.     Damages  in  Statutory  Action — Pecuniary  Loss 242 

II.     Exemplary    Damages 247 

HI.     No  Damages  for  Injury  to  Deceased 251 


TABLE   OF   CONTENTS  Til 

Page 

IV.     Prospective  Pecuniary  Losses — Prospective  Benefits 254 

V.     Same — Prospective    Inheritance 258 

VI.     Nominal  Damages 2G3 

WRONGS  AFFECTING  REAL  PROPERTY 

T.     Injuries  to  Real  Property — Trespasses 26S 

II.     Contracts  to  Sell  Real  Property — Breach  by  Vendor 270 

III.     Same — Breach  by  Vendee 272 

BREACH  OF  MARRIAGE  PROMISE 

I.     Compensatory    Damages 274 

II.     Exemplary    Damages 27& 

* 


TABLE     OF  CASES 


Page 
Alabama  G.  S.  R.  Co.  v.  Sellers..  185 
Atcliisou,    T.   &    S.    F.   R.    Co.    v. 
Townsend    247 

Baltimore  &  O.  R.  Co.  v.  Carr 204 

Barker  v.  S.  A.  Lewis  Storage  & 

Transfer   Co l"*"! 

Blackmer  v.   Cleveland,   C,   C.  & 

St.  L.  R.  Co 216 

Bowers    v.    Mississippi    &   R.    R. 

Boom    Co 91 

Brown  v.  Cowles 51 

Calumet  River  R.  Co.  v.  Moore..  165 

Chellis  V.  Chapman 279 

Chicago  City  R.  Co.  v.  Saxby 65 

Cole  V.  Gray 184 

Davidson     Development     Co,     v. 

Southern  R.  Co 218 

Davis  V.  Bowers  Granite  Co 199 

Delaware  &  A.  Telegraph  &  Tele- 
phone Co.  V.  Elvins 134 

Demarest  v.  Little 258 

Denver  &  R.  G.  R.  Co.  v.  Spencer  261 

Douglass  v.  Ohio  River  R.  Co 8 

Dow    V.     Winnipesaukee    Gas    & 

Electric   Co 38 

Durf ee  v.  Newkirk 182 

Dwyer  v.  Chicago,  St.  P.,  M.  &  O. 
R.    Co 251 


Page 
Harper  Furniture  Co.  v.  Southern 

Exp.    Co 53 

Harvey  v.  Mason  City  &  Ft.  D.  II. 

Co 94 

Ilauser  v.  Griffith 189 

Hedden  v.   Schueblin 45 

Heister  v.  Loomis 201 

Henry  v.  Ohio  River  R.  Co 98 

Herron  v.  Western  Union  Tel.  Co.  228 
Hewson-Herzog     Supply     Co.     v. 

Minnesota  Brick  Co 1 

Hogan  V.  Kyle 272 

Hunt  Bros.  Co.  v.  San  Lorenzo 
Water    Co 48 

Illinois  Cent.  R.  Co.  v.  Cobb, 
Christy  &  Co 65 

Illinois  Cent.  R.  Co.  v.  Johnson  & 
Fleming    57 

Ingram  v.  Rankin 179 

Jacksonville,  T.  &  K.  W.  R.  Co.  v. 
Peninsular     Land,     Transp.     & 

Mfg.    Co 167 

Jones  V.  King 17 

Judd   v.  Dike 151 

J.  Wragg  &  Sons  Co.  v.  Mead 24 

Kansas  Pac.  Ry.  v.  Mihlman 88 

Keck  V.  Bieber 147 

Kentucky  Heating  Co.  v.  Hood . .     35 


Elliott  V.   Missouri  Pac.  R.  Co. 
Ellis  V.  Hilton 


Farrand   v.    Aldrich 

Fell  v.  Union  Pac.  R.  Co 

Florida  Cent.  &  P.  R.  Co.  v.  Fox- 
worth    

<;ilman  v.  Brown 

Gilson  V.  Delaware  &  II.  Canal  Co. 
Goddard  v.  Grand  Trunk  Ry.  of 

Canada    

Goodhart  v.  Pennsylvania  R.  Co. 
Gronan  v.  Kukkuck 


1.33 
67 

126 
159 

242 

268 
27 

190 
102 
127 


Hadley  v.  Baxendale 

Hammer  v.   Schocnfeldor. 

CooLEY  Dam. 


30 
47 


Lake    Shore   &   M.    S.   R.    Co.   v. 

Prentice    

Larson   v.  Chase 

Lawrence  v.  Porter 

Laycock  v.  Parker 

Lazelle  v.  Newfane. 

Little  I{ock  Ky.  &  Electric  Co.  v. 

Dobbins     

Louisville  &  N.  R.  Co.  v.  St i- wart 

McAllister  v.  Clement 

McDermott  v.  Sevore 

iNIcKay  v.  New  England  Dredging 

("<) 

McIMullnn  v.  Dickinson  Co 

Moiitzer    v.    Western    Union    Tel. 

Co 


194 
107 
62 
1.52 
20:{ 

224 
173 

12 
110 

254 

84 

115 


(ix) 


X 


TABLE   OF   CASES 


Page 

Merica  v.  Burgett 139 

Murphy  v.  Fond  Du  Lac 132 

Nashville,  C.  &  St.  L.  Ry.  v.  Mil- 
ler       128 

National  Fibre  Board  Co.  v.  Lew- 
iston  &  A.  Electric  Light  Co .  .     77 

Neppach  v.  Oregon  &  C.  R.  Co..  270 

O'Keefe  v.   Dyer 142 

Osmun  V.  Winters 274 

Park  V.  Richardson-Boynton  Fur- 
nace Co 215 

Patterson  v.  Illinois  Cent.  R.  Co.     60 
Pennsylvania  Coal  Co.  v.  Sander- 
son          4 

Potter  V.  Melleu IG 

Primrose  v.    Western   Union   Tel. 

Co 237 

Prmce  v.  State  Mut.  Life  Ins.  Co.  1S7 

Randall  v.  Hazelton 3 

Richmond  &  D.  R.  Co.  v.  Allison     70 

Righter  v.  Clark 213 

Roehm   v.   Horst 81 

Schumaker  v.  St.  Paul  &  D.  R.  Co.    20 
Sherman     Center    Town     Co.    v. 
Leonard 74 


Page 

Smith  V.  Bergengren 149 

State  V.  Davis 9 

States  V.  Durkin 7U 

Summerfield    v.     Western     Union 
Tel.   Co 122 

Tathwell  v.  Cedar  Rapids 20r» 

Taylor  v.  Spencer 42 

Todd  V.  Gamble 210 

Towaliga  Falls  Power  Co.  v.  Sims  30 
Turner  v.  Great  Northern  R.  Co.  10-5 

Waggoner   v.   Snody 130 

Wartman  v.  Swindell 10 

Watson   V.    Rheinderknecht 22 

Webb  V.  Portland  Mfg.  Co 13 

West  Chicago  St.  R.  Co.  v.  Levy..  200 
Western  Real  Estate  Trustees  v. 

Hughes    69 

Western  Union  Tel.  Co.  v.  Milton  232 
Western  Union  Tel.  Co.  v.  Twad- 

dell    230 

Wichita  &  W.  R.  Co.  v.  Beebe 80 

Wood  V.  Pennsylvania  R.  Co....     32 

Wragg  &  Sons  Co.  v.  Mead 24 

Wright  v.  Bank  of  Metropolis....  174 
Wright   V.   Beardsley 112 

Yorton  v.  Milwaukee,  L.  S.  &  W. 
R.   Co 221 


M 


ILLUSTRATIVE  CASES  ON 
DAMAGES 


GENERAL  PRINCIPLES 

I.  Theory  of  Damages.  * 
1.  Compensation  the  Ruee 


HEWvSON-HERZOG  SUPPLY  CO.  v.  MINNESOTA 
BRICK  CO. 

(Supreme  Court  of  IVIinnesota,   1893.     55  Minn.  530,  57  N.  W.   129.) 

Action  by  the  Hewson-Herzog  Supply  Company  against  the 
Minnesota  Brick  Company  to  recover  damages  for  breach  of  con- 
tract. On  the  trial  the  court  below  directed  the  jury  to  find  a  ver- 
dict for  the  plaintiff  for  $26,415.  Subsequently,  on  defendant's 
mo-tion,  the  court  granted  a  new  trial  on  the  ground  that  the  evi- 
dence as  to  damages  was  insufficient.  From  this  order  the  plain- 
tiff appeals. 

Buck,  j,2  *  *  *  f\-^Q  contract  provides  that  the  defendant 
shall  manufacture  and  sell  to  the  plaintiff,  during  the  season  of 
1890,  all  the  pressed  brick  to  be  made  by  the  defendant  at  its  yards 
at  Wheeler,  Dunn  county,  Wis.,  and  to  burn,  and  have  ready  for 
shipment  during  the  season  commencing  on  or  before  June  9,  1890, 
good  merchantable  pressed  brick,  *  *  *  ^q  i\-iq  number  of 
not  less  than  3,000,000,  and  as  many  more  as  defendant  could 
make,  up  to  the  number  of  6,000,000.  *  *  *  f  j-^g  plaintiff  was 
to  *  *  *  pay  defendant  ,^13.50  per  thousand  for  such  brick 
on  board  cars  at  defendant's  yards  at  Wheeler,  Wis.,  upon  the 
basis  of  $2.50  per  thousand  for  freight  to  St.  Paul  or  Minneapolis, 
and,  if  the  freight  Avas  greater  than  this  amount,  the  difference 
should  be  deducted  from  the  $13.50  per  thousand  for  the  brick. 
*  *  *  The  defendant  made  various  attempts  to  manufacture 
the  brick  mentioned  in  the  contract,  but  did  not  succeed,  and  it 
was  unable  to  furnish  the  plaintiff  with  the  amount  of  brick  re- 

1  For  a  (lisf-ussion  of  principles,  see  Hale  on  Damnj^os  (2d  Ed.)  §  2. 

2  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 

CooLEY  Dam. — 1 


2  GENERAL   PRINCIPLES 

quired  by  the  terms  of  the  contract,  only  a  few  thousand  being  fur- 
nished. By  reason  of  this  failure,  the  plaintiff  alleged  that  it  was 
damaged  in  the  sum  of  $27,000.     *     *     * 

Qn  the  trial  the  plaintiff  was  permitted  to  show  by  two  wit- 
nesses, against  the  objections  of  defendant,  that  the  market  value 
of  the  pressed  brick  of  the  character  described  in  the  contract  was 
$28  per  thousand  at  Minneapolis,  but  on  cross-examination  they 
testified  that  this  price  or  market  value  was  that  which  the  jobber 
or  agent  charged  to  the  builder,  and  not  the  price  or  value  of  such 
brick  when  sold  by  the  manufacturer  to  a  jobber  or  agent,  and  that 
as  to  such  prices  or  values  they  had  no  knowledge.  Upon  this 
subject  no  other  testimony  was  given  by  plaintiff,  although  its 
principal  managing  officers  were  examined  as  witnesses  upon  the 
trial.  A  witness  for  the  defendant  testified  that  there  was  a  dif- 
ference in  the  market  price  or  value  of  brick  sold  by  the  manu- 
facturer to  the  jobber  or  agent,  and  the  price  or  market  value  of 
brick  sold  by  the  jobber  or  agent  to  the  builder  or  contractor,  which 
evidence  was  not  disputed.  The  court  below  held  the  measure  of 
damages  to  be  the  difference  between  the  contract  price  of  the  brick 
delivered  in  St.  Paul  or  Minneapolis,  viz.  $16  per  thousand,  and 
the  price  which  the  jobber  or  middleman  charged  or  sold  the  brick 
to  the  builder  or  contractor  viz.  $28 'per  thousand,  but  limited  the 
amount  of  the  recovery  to  $9  per  thousand,  because  the  plaintiff 
only  demanded  that  amount  in  its  pleadings.  In  cases  of  this  kind, 
no  more  damages  can  be  recovered  than  such  as  were  within  the 
contemplation  of  the  parties  when  the  contract  was  entered  into, 
and  which  would  likely  result  from  a  breach  thereof;  for  the  fam- 
iliar rule  may  be  applied  here  "that  the  intention  of  the  parties  is 
to  be  ascertained  from  the  whole  contract,  considered  in  connec- 
tion with  the  surrounding  circumstances  known  to  both  parties.'' 

It  cannot  be  reaso^nably  or  legally  claimed  that  these  parties  ever 
contemplated  that,  if  the  defendant  was  unable  to  perform  the  con- 
ditions of  its  contract,  the  measure  of  damages  should  be  the  differ- 
ence between  the  price  of  the  brick  to  the  plaintiff  at  St.  Paul  or 
Minneapolis,  viz.  $16  per  thousand,  and  the  price  which  the  plain- 
tiff, as  jobber,  charged  or  sold  the  brick  for  to  the  builder  or  con- 
tractor. Such  a  rule  or  measure  of  damages  would  compel  the 
defendant  to  pay  the  plaintiff'  all  the  expense  of  carrying  on  its 
business,  including  the  value  of  time  spent,  costs  of  handling,  and 
other  incidental  expenses  attending  the  sale  of  3,000,000  brick  at 
retail,  for  a  period  of  nine  months  at  least,  the  time  covered  by 
the  contract.  The  result  would  also  be  that  the  plaintiff  would 
receive  a  greater  sum  as  damages  by  reason  of  the  defendant's 
default  than  it  could  obtain  as  profits  if  the  defendant  had  per- 
formed all  the  conditions  of  its  co^ntract  with  plaintiff.  This  is  not 
the  compensation  as  damages  which  the  law  permits  by  reason  of 
the  breach  of  a  contract.     The  rule  stated  as  law  in  Sutherland  on 


WRONG   AND    DAMAGE  3 

Damages  (volume  1,  p.  17)  is  this :  "This  universal  and  cardinal 
principle  is  that  the  person  injured  shall  receive  a  compensation 
commensurate  with  his  loss  or  injury,  and  no  more;  and  it  is  a  right 
of  the  person  who  is  bound  to  pay  this  compensation  not  to  be 
compelled  to  pay  more,  except  costs.'' 

Plaintiff  was  not  entitled  to  recover,  as  damages,  any  greater 
sum  than  the  difference  between  the  contract  price  of  the  brick 
at  St,  Paul  and  Minneapolis,  viz.  $16  per  thousand,  in  the  quantities 
and  at  the  periods  mentioned  in  the  contract,  and  the  market  value 
at  those  places  which  it  would  have  to  pay  as  jobbers  or  middle- 
men for  brick  of  a  similar  kind,  and  in  the  quantities  which  it 
was  entitled  to  receive  under  its  contract  (Tower  Co.  v.  Phillips, 
23  Wall.  471,  23  L.  Ed.  71).  *  *  *  The  order  granting  a  new 
trial  is  affirmed. 


II.  Wrong  and  Damage  ' 
1.  Damnum  Absque  Injuria 


RANDALL  v.  HAZELTON  et  al. 
(Supreme  Judicial  Court  of  Massacliusetts,  1866.    12  Allen,  412.) 

The  declaration  alleged,  in  substance,  that  the  plaintiff  owned  an 
estate  subject  to  a  mortgage  given  by  a  former  owner,  containing 
a  power  of  sale  for  nonpayment  of  interest;  that  the  mortgagees 
informed  plaintiff  that  they  did  not  want  the  money  paid  when 
due,  and  he  therefore  made  no  provision  to  raise  the  money,  but 
that  the  defendants  secured  an  assignment  of  the  mortgage  by 
means  of  false  representations  as  to  plaintiff's  desires,  and  pro- 
ceeded to  make  a  sale  under  the  power  granted  in  the  mortgage ; 
that  plaintiff'  did  not  know  of  the  sale  until  after  it  occurred,  and 
was  put  to  great  expense  in  obtaining  a  deed  of  the  estate  and  in 
regaining  title. 

Colt,  J,*  *  *  *  fhc  question  raised  by  the  demurrer  is 
whether,  upon  the  facts  charged,  the  action  can  be  maintained.  It 
is  an  ancient  and  well  established  legal  principle  that  fraud  without 
damage  or  damage  without  fraud  gives  no  cause  of  action;  yet 
when  the  two  do  concur,  there  an  action  lieth.  Baily  v.  Merrell, 
3  Bulst.  95.  Actions  like  the  one  under  consideration  are  all  based 
upon  this  proposition;  but  it  cannot  safely  be  applied  as  a  test  by 
which  to  determine  whether  the   facts  in  any  case  constitute  an 

3  Forr  a  disr-rission  of  prindpU'S,  sec;  Ilale  on  Daniagos  (2d  Kd.)  §  3. 

*  Part  of  the  opinion  is  ouiilted  and  the  statement  of  facts  Is  rewritten. 


4  GENERAL   PRINCIPLES 

actionable  wrong,  witho'Ut  keeping  in  mind  the  meaning  which  the 
law,  by  a  series  of  judicial  decisions,  has  attached  to  the  terms 
used.  It  is  well  settled  that  every  falsehood  is  not  necessarily  a  legal 
fraud  or  false  representation.  It  is  said  that  a  false  representation 
is  an  affirmation  of  that  which  the  party  knows  to  be  false  or  does 
no't  know  to  be  true,  to  another's  loss  or  his  own  gain.  Lobdell  v. 
Baker,  1  Mete.  201,  35  Am.  Dec.  358.  '  So  in  reference  to  the  term 
damage,  the  law  is  that  it  must  be  a  loss  brought  upon  the  party 
complaining  by  a  violation  of  some  legal  right,  or  it  will  be  consid- 
ered as  merely  damnum  absque  injuria.  There  is  a  large  class  of 
moral  rights  and  duties,  sometimes  called  imperfect, rights  and  ob- 
ligations, which  the  law  do^es  not  attempt  to  enforce  or  protect. 
The  refusal  or  discontinuance  of  a  favor  gives  no  cayse  of  action. 
If  one  trusts  to  a  mere  gratuitous  promise  of  favor  from  another 
and  is  disappointed,  the  law  will  not  protect  him  from  the  conse- 
quence of  his  undue  confidence,  nor  encourage  carelessness  or  want 
of  prudence  in  afifairs.  Damages  can  never  be  recovered  where 
they  result  from  a  lawful  act  of  the  defendant.  The  exercise  of  a 
right  conferred  by  a  valid  contract,  in  the  manner  provided  by  its 
terms,  cannot  be  the  ground  of  an  actioai.  The  law  will  not  inquire 
into  the  motives  of  the  party  exercising  such  right,  however  un- 
friendly and  selfish.  The  trouble  and  expense  and  risk  of  loss 
ought  to  and  must  be  presumed  to  have  been  contemplated  when 
the  contract  was  entered  into.  The  foreclo'Sure  of  a  mortgage  un- 
der a  power  of  sale,  for  example,  may  be  made  at  such  time  and 
under  such  circumstances  as  to  cause  great  distress  and  sacrifice 
to  the  mortgagor;  but,  whatever  the  motive  of  the  mortgagee,  no 
remedy  is  afforded  for  his  oppressive  conduct,  if  the  requirements 
of  the  contract  have  been  fulfilled.     *     *     *     Demurrer  sustained. 


PENNSYLVANIA  COAL  CO.  v.  SANDERSON. 

(Supreme   Court  of   Pennsylvania.    1SS6.     113    Pa.    126,    6  Atl.  453,   57  Am. 

Rep.  445.) 

Trespass  on  the  case  by  J.  Gardner  Sanderson  and  Eliza,  his 
wife,  in  the  right  of  the  wife,  against  the  Pennsylvania  Coal  Com- 
pany, for  damages  for  the  corruption  of  plaintiff's  water-course 
caused  by  the  working  of  defendant's  colliery.  The  defendant  as 
the  owner  of  coal  lands  situated  on  a  tributary  of  the  Lackawanna 
river  known  as  Meadow  brook  opened  mines  in  1867  or  1868.  From 
the  time  the  first  tunnel  was  driven  the  mine  water  flowed  by 
natural  course  into  Meadoav  brook.  The  water  which  percolated 
into  the  mine  was  pumped  therefrom  and  flowed  also  into  Meadow 
brook,  which  was  the  natural  water-course  for  drainage  of  the  basin 
in  which  the  mines  were  situated.     The  plaintiff,  Mrs.  Sanderson, 


WRONG    AND    DAMAGE  5 

in  1868,  purchased  a  tract  of  land  on  Meadow  brook,  about  three 
miles  below  defendant's  mines ;  the  existence  of  the  stream,  the 
purity  of  its  water,  and  its  utility  for  domestic  and  other  purposes 
being  the  inducement  to  the  purchase.  In  1870  she  erected  a  house 
on  the  land,  and  in  connection  therewith  built  dams  across  the 
brook  to  form  fish  and  ice  ponds  and  to  supply  a  cistern. 

It  was  alleged  that  the  large  volume  of  mine  water  which  the 
defendant  poured  into  Meadow  brook  corrupted  the  water  of  the 
stream  so  as  to  render  it  unfit  for  domestic  use,  that  the  fish  have 
been  destroyed,  plaintifif's  pipes  corroded,  and  the  whole  apparatus 
installed  to  utilize  the  water  rendered  worthless,  in  consequence 
of  which  the  same  was  abandoned.  There  was  a  verdict  and  judg- 
ment for  plaintiff  for  $2,872,  and  defendant  brings  error. 

Clark,  j.s  *  *  *  it  has  been  stated  that  30,000,000  of  to.ns 
of  anthracite  and  70,000,000  of  bituminous  coal  are  annually  pro- 
Auced  in  Pennsylvania.  It  is  therefore  a  question  of  vast  import- 
ance, and  cannot,  on  that  account,  be  too  carefully  considered ; 
for,  if  damages  may  from  time  tO'  time  be  recovered,  either  in  the 
present  form  or  as  for  a  nuisance,  punitive  sums  may  be  resorted 
to  to  prevent  repetition,  or  to  compel  the  abatement  of  the  nui- 
sance. Indeed,  if  the  right  to  damages  in  such  cases  is  admitted, 
equity  may,  and  under  the  decisions  of  this  co'urt  undoubtedly 
would,  at  the  suit  of  any  riparian  owner,  take  jurisdiction,  and,  upon 
the  ground  of  a  continuous  and  irreparable  injury,  enjoin  the  opera- 
tion of  the  mine  altogether.  Whatever  rights  Mrs.  Sanderson  may 
have  to  the  use  of  this  .water,  and  whatever  remedy  she  may  have 
in  this  case,  or  in  any  other  form,  in  law  or  in  equity,  is  the  right 
and  remedy  of  every  other  riparian  owner  along  Meadow  brook ; 
and  whatever  may  be  the  rights  and  remedies  of  the  owners  on 
Meadow  broO'k  are,  of  course,  the  rights  and  remedies  of  all  other 
riparian  owners  throughout  the  commonwealth.  It  may  be  that 
Mrs.  Sanderson  adopted  a  more  extensive  arrangement  for  the  use 
of  this  water  than  any  other  person,  and  is  consequently  more 
inco'nvenienced  on  that  account;  but  the  law  is  the  same  in  her 
case  as  in  all  other  cases.  If  she  may  recover  damages  in  a  large 
amount,  others  similarly  but  less  affected  may  recover  in  a  less 
sum.  Besides,  these  riparian  owners  are  not  limited  to  their  pres- 
ent modes  of  enjoyment.  It  is  impossible  to  foresee  what  other 
modes  of  enjoyment  they  or  their  successors  in  title  may  adopt,  or  to 
estimate  the  extent  of  damages  to  which  the  continued  pollution 
of  the  stream  might  proceed.  Hence,  if  the  responsibility  of  the 
operator  of  a  mine  is  extended  to  injuries  of  the  character  com- 
plained of,  the  consequences  must  be  that  mining  cannot  be  con- 
ducted except  by  the  general  consent  of  all  parties  affected. 

It  will  be  observed  that  the  defendants  have  done  nothing  to 
change  the  character  of  the  water,  or  to  diminish  its  purity,  save 

»  Part  of  tlie  oiiiiiion  is  oinitd'd  and  tbo  sliilonieiit  of  facts  is  rewritten. 


6  GENERAL   PRINCIPLES 

what  results  from  the  natural  use  and  enjoyment  of  their  own 
property.  They  have  brought  no^thing  onto  the  land  artificially. 
The  water  as  it  is  poured  into  Meadow  brook  is  the  water  which 
the  mine  naturally  discharged.  Its  impurity  arises  from  natural, 
not  artificial,  causes.  The  mine  cannot,  of  course,  be  operated  else- 
where than  where  the  coal  is  naturally  found,  and  the  discharge  is 
a  necessary  incident  to  the  mining  of  it. 

It  must  be  conceded,  we  think,  that  every  man  is  entitled  to  the 
ordinary  and  natural  use  and  enjoyment  of  his  property.  He  may 
cut  down  the  forest  trees,  clear  and  cultivate  his  land,  although  in 
so  doing  he  may  dry  up  the  sources  of  his  neighbor's  springs,  or 
remove  the  natural  barriers  against  wind  and  storm.  If,  in  the 
excavation  of  his  land,  he  should  uncover  a  spring  of  water,  salt 
or  fresh,  acidulated  or  sweet,  he^  will  certainly  not  be  obliged  to 
cover  it  again,  or  to  conduct  it  out  of  its  course,  lest  the  stream  in 
its  natural  flow  may  reach  his  neighbor's  land.  It  has  always  been 
considered  that  land  on  a  lower  level  owes  a  natural  servitude  to 
that  on  a  higher  level,  in  respect  of  receiving,  without  claim  for 
compensation  by  the  owner,  t*he  water  naturally  flowing  down  to  it. 
In  sinking  his  well,  he  may  intercept  and  appropriate  the  water 
which  supplies  his  neighbor's  well  (Acton  v.  Blundell,  12  Mees.  & 
W.  324;  Wheatley  v.  Baugh,  25  Pa.  528,  64  Am.  Dec.  721;  Halde- 
man  v.  Bruckhart,  45  Pa.  514,  84  Am.  Dec.  511),  or,  if  his  own  well 
is  so  close  to  the  soil  of  his  neighbor  as  to  require  the  support  of 
a  rib  of  clay  or  of  stone  on  his  neighbour's  land  to  retain  the  water 
in  the  well,  no  action  will  lie  against  the  owner  of  the  adjacent  land 
for  digging  away  such  clay  or  stone  which  is  his  own  property, 
and  thereby  letting  out  the  water  (Whart.  Neg.  939).  He  may,  to 
a  reasonable  extent,  jure  naturae,  diverf  water  from  a  stream  for 
domestic  purposes,  and  for  the  irrigation  of  his  land.  Messinger's 
Appeal,  109  Pa.  285,  4  Atl.  162.  So,  also,  each  of  two  owners  of 
adjoining  mines  has  a  natural  right  to  work  his  own  mine  in  the 
manner  most  convenient  and  beneficial  to  himself,  although  the 
natural  consequence  may  be  that  some  prejudice  will  occur  to  the 
owner  of  the  adjoining  mine.  Smith  v.  Kenrick,  7  C.  B.  505.  One 
mine-owner  may  thus  permit  water  naturally  flowing  in  his  own 
mine  to  pass  off  by  gravitation  into  an  adjoining  or  lower  mine  so 
long  as  his  operations  are  carried  on  properly  and  in  the  usual 
manner.  Bainb.  Mines,  297.  To  the  same  eft'ect  are  Wilson  v.  Wad- 
dell,  L.  R.  2  App.  Cas.  95 ;   Crompton  v.  Lea,  L.  R.  19  Eq.  115. 

The  defendants,  being  the  owners  of  the  land,  had  a  right  to 
mine  the  coal.  It  may  be  stated,  as  a  general  proposition,  that 
every  man  has  the  right  to  the  natural  use  and  enjoyment  of  his 
own  property;  and  if,  while  lawfully  in  such  use  and  enjoyment, 
without  negligence  or  malice  on  his  part,  an  unavoidable  loss  occurs 
to  his  neighbor,  it  is  damnum  absque  injuria;  for  the  rightful  use 
of  one's  own  land  may  cause  damage  to  another,  without  any  legal 


WRONG    AND   DAMAGE 


wrong.  ]\Iiiiing  in  the  ordinary  and  usual  form  is  the  natural  user 
of  coal  lands.  They  are,  for  the  most  part,  unfit  for  any  other  use. 
"It  is  established,"  says  Cotton,  L.  J.,  in  West  Cumberland  Iron 
Co.  V.  Kenyon,  L.  R.  6  Ch.  Div.  77Z,  "that  taking  out  minerals  is  a 
natural  use  of  mining  property,  and  that  no  adjoining  proprietor 
can  complain  of  the  result  of  careful,  proper  mining  operations." 
In  the  same  case,  Brett,  L.  J.,  says :  "The  cases  have  decided  that, 
Avhere  that  maxim  [sic  utere  tuo  ut  alienum  non  Isedas]  is  applied 
to  landed  property,  it  is  subject  to  a  certain  modification;  it  being 
necessary  for  the  plaintiff  to  show,  not  o-nly  that  he  has  sustained 
damage,  but  that  the  defendant  has  caused  it  by  going  beyond  what 
is  necessary  in  order  to  enable  him  to  have  the  natural  use  of  his 
own  land.'' 

The  right  to  mine  coal  is  not  a  nuisance  in  itself.  It  is,  as  we  have 
said,  a  right  incident  to  the  ownership  of  coal  property;  and  when 
exercised  in  the  ordinary  manner,  and  with  due  care,  the  owner 
cannot  be  held  for  permitting  the  natural  flow  of  mine  water  over 
his  own  land,  into  the  water-course,  by  means  of  which  the  natural 
drainage  of  the  country  is  effected.  There  are,  it  is  well  known, 
percolations  of  mine  water  into  all  mines.  Whether  the  mine  be 
operated  by  tunnel,  slope,  or  shaft,  water  will  accumulate,  and  un- 
less it  can  be  discharged,  mining  must  cease.  The  discharge  of 
this  acidulated  water  is  practically  a  condition  upon  which  the  or- 
dinary use  and  enjoyment  of  coal  lands  depends.  The  discharge 
of  the  water  is  practically  part  and  parcel  of  the  process  of  mining : 
and,  as  it  can  only  be  effected  through  natural  channels,  the  denial 
of  this  right  must  inevitably  produce  results  of  a  most  serious  char- 
acter to  this,  the  leading  industrial  interest  of  the  state.  The  de- 
fendants were  engaged  in  a  perfectly  lawful  business,  in  which  they 
had  made  large  expenditures,  and  in  which  the  interests  of  the  en- 
tire community  were  concerned.  They  were  at  liberty  to  carry  on 
that  business  in  the  ordinary  way,  and  were  not,  while  so  dodng, 
accountable  for  consequences  which  they  could  not  control.  As 
the  mining  operations  went  on,  the  water,  by  the  mere  force  of 
gravity,  ran  out  of  the  drifts,  and  found  its  way  over  the  defendant's 
own  land  to  the  Meadow  brook.  It  is  clear  that  for  the  conse- 
quences of  this  flow,  which,  by  the  mere  force  of  gravity,  naturally, 
and  without  any  fault  of  the  defendants,  carried  the  water  into  the 
brook,  and  thence  to  the  plaintiff's  pond,  there  could  be  no  respon- 
sibility as  damages  on  part  of  the  defendants.  *  *  *  The  judg- 
ment is  reversed. 


NOMINAL   DAMAGES 

NOMINAL  DAMAGES 
I.  General  Nature  ^ 

1.  Actual  Loss  Not  Proved 


DOUGLASS  V.  OHIO  RIVER  R.  CO. 

(Supreme   Court   of   Appeals   of   West   Virginia,    1902.     51    W.    Va.    523,   41 

S.  E.  911.) 

Action  by  Hiram  Douglass  against  the  Ohio  River  Railroad  Com- 
pany to  recover  damages  for  the  breach  of  covenant  to  construct 
and  maintain  cattle  guards  and  crossings.  There  was  judgment 
for  plaintiff,  and  defendant  brings  error.     Reversed. 

Br.\nnon,  j.2  *  *  *  We  think  that  the  plaintiff  showed 
only  a  right  to  nominal  damages,  not  compensatory  damages,  be- 
cause he  showed  no  actual  loss  from  the  omission  to  build  and 
maintain  fences  and  crossings — no  loss  computable  in  law.  The 
fencing  and  crossing  were  only  for  use  if  the  land  was  used  for 
grazing.  It  had  no  grass  upon  it.  The  plaintiff  neither  put  cattle 
upon  it,  nor  appears  to  have  had  any  cattle  to  put  upon  it.  He 
used  it  every  year  for  grain.  He  had  no  fencing  on  two  sides  of 
*he  field.  It  very  plainly  appeared  that  he  really  did  not  desire 
to  use  the  land  for  grazing.  Why  does  it  so  appear?  Because, 
though  the  company  did  build  fences  three  years  before  this  suit 
began — good  fences,  as  the  plaintiff  admits — he  did  not  put  a  hoof 
of  stock  upon  the  land,  but  kept  on  cropping  it.  His  whole  action 
shows  that,  as  the  land  was  first-class  Ohio  river  bottom  land,  he 
preferred  to  use  it  for  grain.  As  he  had  no  cattle  there,  how  did 
he  suffer  any  loss,  and  where  is  the  justice  of  paying  him  damages 
when  he  showed  no  loss?  If  he  had  had  cattle  there,  they  could 
have  got  water  from  Mill  creek  and  a  drain  on  the  land.  He  drained 
and  tiled  the  land  for  agricultural  purposes.  The  company,  it  is 
true,  did  not  comply  with  the  letter  of  its  bond,  and  is  liable  to 
nominal  damages.  Such  failure  of  duty  will  not  alone  give  right 
to-  compensatory  damages.  There  must  be  both  a  broken  duty, 
and  an  actual  loss  therefrom — a  computable  loss,  a  measurable  loss, 
not  one  merely  conjectural,  or  that  can  be  guessed  at.  "If  the 
company  fails  to  perform  an  agreement  to  fence,  and  animals  are 
killed  by  reason  thereof,  the  measure  of  damages  is  not  what  it 
would  cost  to  erect  the  fence,  but  the  value  of  the  animals  killed 

1  For  a  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  15-17. 

2  Part  of  tbe  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


GENERAL   NATURE  9 

or  injured,  or  other  damage  done;  or,  in  other  words,  the  com- 
pany will  be  liable  for  all  damages  which  pro^ximately  flow  from 
its  failure  to  perform  its  contract  duty."  3  Elliott,  R.  R.  §  1188. 
There  must  be  actual  damage  done,  to  warrant  compensatory  dam- 
ages.    12  Am.  &  Eng.  Enc.  Law,  1073.     *     *     * 

Douglass  claimed  that  he  did  not  put  cattle  on  the  land  from 
fear  that  they  would  be  killed  by  trains.  Loss  from  that  cause 
wo'uld  be  purely  conjectural.  Such  loss,  though  possible,  cannot 
be  considered  where  we  have  to  assess  damages  as  actual — based 
on  actual  loss.  The  cattle  might  not  have  been  hurt.  If  hurt, 
when  hurt  the  company  would  have  to  pay  their  value.  Shall  we 
make  it  pay  for  cattle  not  hurt,  not  even  on  the  premises?  Again, 
the  evidence  discloses  no  certain  criterion  for  assessment  of  dam- 
age. A  jury  must  have  definite  evidence  by  which  to  find  a  cer- 
tain sum  as  compensation  for  actual  loss,  before  it  can  render  a  ver- 
dict for  compensatory  damages.  For  a  broken  contract,  merely,  it 
can  find  nominal  damages,  but  not  compensatory;  for  the  very 
term  "compensatory  damages"  implies  that  there  must  be  actual 
loss  before  compensation  can  be  given,  and  there  must  be  definite 
basis  given  by  the  evidence  upon  which  a  jury  can  define  and  fix 
the  amount  of  the  loss;  otherwise  any  assessment  is  without  law 
and  against  law.  If  the  plaintiff  cannot  show  such  a  basis,  it  is 
his  misfortune;  his  evidence  fails  to  show  a  loss  of  such  substan- 
tial, tangible  cast  as  that  we  can  take  hold  of  it,  and  weigh  and 
fix  it  in  dollars.  A  jury  is  never  permitted  to  grope  in  the  dark,  and 
merely  surmise,  approximate,  or  guess  at  damages.  Watts  v.  Rail- 
road Co.,  39  W.  Va.  196.  19  S.  E.  521,  23  L.  R.  A.  674,  45  Am.  St. 
Rep.  894;  Guinn  v.  Railroad  Co.,  46  W.  Va.  151,  33  S.  E.  87,  76 
Am.  St.  Rep.  806.  Had  any  stock  been  killed  for  want  of  fences, 
or  perished  for  want  of  a  crossing,  or  if  the  plaintiff  had  shown 
any  special  actual  loss,  he  could  recover;  but,  as  it  is,  where  is  his 
real  loss?  As  there  were  no  fences,  we  do  not  see  that  the  want 
of  a  crossing  could  be  a  basis  of  damages,  even  if  there  had  been 
cattle  on  the  land.  Therefore  we  are  compelled  to  say  that  the 
evidence  is  not  of  that  character  to  justify  the  verdict.  It  is  against 
law,  touching  the  measurement  of  damages.     *     *     * 


STATE  ex  rel.  LOWERY  v.  DAVIS  et  al. 

(Supreme  Court  of  Indiana,  1889.     117  Ind.  307,  20  N.  E.   1.^9.) 

Lowery  brouglit  this  action  to  recover  upon  the  official  bond  of 
Davis,  recorder  of  deeds  of  Madison  coainty.  The  breach  alleged 
was  that  Davis,  in  recording  a  deed  frdiii  Lowery  to  another,  had 
negligently  entered  a  stipulation  in  that  deed  that  the  grantee 
should  assume  and  pay  a  certain   mortgage  previously  made  by 


10  NOMINAL   DAMAGES 

Lowery,  to  the  extent  of  $500,  as  a  stipulation  to  assume  and  pay 
it  only  to  the  extent  of  $200;  and,  the  land  having  been  sold  again 
to  one  who  was  ignorant  of  the  true  amount,  Lowery  had  lost  his 
right  to  have  the.  land  charged  with  full  amount.  It  was  alleged 
also  that  the  first  grantee  was  insolvent,  and  that  the  plaintiff  had 
been  compelled  to  pay  the  $500.  Upon  the  trial,  however,  there 
was  no  proof  that  the  amount  could  not  be  collected  from  the  gran- 
tee who  had  assumed  it. 

EivLioTT,  C.  J.3  *  *  *  fYiQ  jury  returned  a  verdict  in  favor 
of  the  relator  for  $1,  and  his  counsel  insist  that  this  finding  decides 
all  questions  in  his  favor,  and  that,  consequently,  the  assessment 
of  the  amount  of  recovery  should  have  been  at  least  $300.  We  can- 
not accept  this  theory.  The  recorder,  who  is  guilty  of  a  breach  of 
duty,  is  only  liable  for  nominal  damages,  unless  the  plaintiff  proves 
an  actual  loss.  It  is  quite  clear,  therefore,  that  a  verdict  for  nom- 
inal damages  does  not  n^ecessarily  decide  all  material  questions  in 
favor  of  the  plaintiff,  for,  on  the  contrary,  it  really  decides  that  he 
suffered  nothing  more  than  a  nominal  injury.  A  plaintiff  cannot 
recover  of  a  recorder  and  the  sureties  on  his  official  bond  more 
than  nominal  damages,  unless  he  proves  an  actual  loss,  and  to  prove 
this  he  must  show,  in  such  a  case  as  this,  that  he  could  not  have 
collected  the  amount  of  his  lien  from  the  party  who  assumed  to 
pay  it.  In  other  words,  where  a  recorder  negligently  so  records 
a  deed  reserving  a  lien  as  to  make  the  amount  of  the  lien  $200, 
when  it  sho'uld  be  $500,  he  is  not  liable  beyond  nominal  damages, 
unless  the  plaintiff  proves  that  he  cannot  collect  the  full  amount 
of  the  lien  from  the  person  who  assumed  its  payment.  If  the  per- 
son who  undertook  to  pay  remains  liable  and  solvent,  then  the 
money  must  be  collected  from  him,  and  not  from  the  recorder  and 
his  sureties.*     *     *     * 


2.  De  Minimis  Non  Curat  htx 


WARTMAN  V.  SWINDELL. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1S92.     54  N.  J.  Law,  589,  25  ■ 
Atl.  35(3,  18  L.  R.  A.  44.) 

Van  Syckel,  J.  In  September,  1891,  the  clerk  of  the  plaintiff 
in  error,  who  was  plaintiff  below,  drove  the  horse  and  carriage  of 
the  plaintiff  to  the  sheriff's  office  in  Camden,  and  there  tied  the 
horse  to  a  post  at  the  curb  line  of  the  street.    While  the  clerk  was 

8  Part  of  the  opinion  is  omitted. 

*  See,  also,  McAllister  v.  Clement,  post,  p.  12. 


GENERAL   NATURE  11 

in  the  sheriff's  office,  the  lines,  worth  about  three  dollars  or  four 
dollars,  were  taken  from  the  horse  by  the  defendant  in  error,  and 
the  clerk  was  left  without  the  means  of  driving  the  horse.  He 
thereupon  demanded  the  lines  of  the  defendant,  who  refused  to  re- 
turn them  to  him.  The  clerk  then  went  to  the  office  of  the  plain- 
tiff, and  informed  him  of  the  occurrence,  and  was  instructed  to  re- 
turn to  the  courthouse,  and  again  demand  the  lines  of  the  defend- 
ant. A  second  demand  was  made,  and  the  defendant  refused  to 
comply  with  it.  Thereupon  the  plaintiff  brought  suit  against  the 
defendant  for  damages.  On  the  trial  of  the  cause  in  the  court  be- 
low the  plaintiff,  after  proving  the  facts  above  stated,  rested  his 
case.  On  the  cross-examination  of  the  plaintiff's  clerk  it  appeared 
that  the  defendant  said  to  him  that  the  plaintiff  had  taken  a  small 
article  from  the  defendant,  and  the  clerk,  in  reply  to  the  question 
whether  the  defendant  did  not  take  the  lines  by  way  of  a  joke,  said 
he  "supposed  perhaps  he  did  it  in  a  joke,  but  he  did  not  know 
what  it  was  done  for  when  it  was  first  done."  When  the  plaintiff 
had  rested  his  case,  the  trial  judge  said:  "If  the  defendant  will 
make  a  tender  of  these  lines  now,  I  will  dismiss  this  case  upon  the 
ground  de  minimis  non  curat  lex.''  The  defendant  thereupon  ten- 
dered the  lines  to  the  plaintiff,  and  the  court  dismissed  the  >ury 
from  the  further  consideration  of  it.  This  disposition  of  the  case 
is  the  error  complained  of  in  this  court. 

The  trial  judge  acted  upon  the  idea  that  the  conduct  of  the  de- 
fendant was  intended  as  a  joke,  and  that  the  matter  involved  was 
too  insignificant  to  claim  the  attention  of  the  co'urt.  If  the  defend- 
ant relied  upon  the  fact  that  he  removed  the  lines  by  way  of  a 
joke,  it  was  a  question  for  the  jury  to  decide  whether  the  parties 
had  been  perpetrating  practical  jokes  upon  each  other  in  such  a 
way  that  the  defendant  had  a  right  to  believe  that  the  plaintiff' 
would  accept  this  act  as  a  joke.  That  question  could  not  legally 
be  taken  from  the  jury,  and  settled  by  the  court;  nor,  in  my  judg- 
ment, was  the  maxim  de  minimis  non  curat  lex  applicable  to  this 
case.  In  Seneca  Road  Co  v.  Auburn  &  R.  R.  Co.,  5  Hill  (N.  Y.) 
175,  Mr.  Justice  Cowen  said  this  maxim  is  never  applied  to  the 
positive  and  wrongful  invasion  of  another's  property.  Tlie  right 
to  maintain  an  action  for  the  value  of  property,  however  small,  of 
which  the  owner  is  wrongfully  deprived,  is  never  denied.  A  tres- 
pass upon  lands  is  actionable,  although  the  damage  to  the  owner 
is  inappreciable.  The  celebrated  Six  Carpenters'  Case,  reported  in 
8  Coke,  432,  involved  a  trifling  sum.  But  as  the  case  in  hand  stood 
at  the  close  of  the  plaintiff's  testimony,  I  am  not  prepared  to  say 
that  a  verdict  for  substantial  damages  would  not  have  been  justi- 
fiable. 

In  my  opinion,  the  trial  court  erred  in  dismissing  tiiis  case,  and 
the  judgment  below  should  therefore  be  reversed.'* 

•  See,  also,  I'otter  v.  Mellen,  post,  p.  16. 


12  NOMINAL    DAMAGES 

McAllister  v.  clement  et  ai. 

(Supreme  Court  of  California,  1888.     75  Cal.   182,  16  Pac   775.) 

Belcher,  C.  C.  This  action  was  brought  to  recover  damages 
for  the  alleged  official  misconduct  or  neglect  of  a  notary  public. 
The  material  facts  of  the  case  are  as  follows :  In  1883,  the  defend- 
ant, C.  H.  Clement,  was  a  notary  public  for  San  Luis  Obispo 
county,  and  the  other  defendants  were  the  sureties  on  his  official 
bond.  On  the  14th  day  of  April  of  that  year,  one  W.  A.  Cook 
made  to  the  plaintiff  his  promissory  note  for  $600,  payable  six 
months  after  date,  with  interest ;  and  on  the  same  day,  to  secure 
the  payment  of  the  note,  executed  to  plaintiff  a  mortgage  upon  a 
crop  of  wheat,  barley,  and  oats  then  growing  in  the  county  of  San 
Luis  ObispO'.  The  mortgage  was  properly  sworn  to  by  the  mort- 
gagor and  mortgagee,  and  was  acknowledged  by  the  mortgagor 
before  the  defendant  Clement.  The  certificate  of  acknowledgment, 
which  was  attached  to  the  mortgage,  reads  as  follows : 

"State  of  California,  County  of  San  Luis  Obispo — ss. :  On  this 
14th  day  of  April,  1880,  before  me  personally  appeared  W.  A.  Cook, 
known  to  me  to  be  the  person  whose  name  is  subscribed  to  the 
within  instrument,  and  he  acknowledged  to  me  that  he  executed 
the  same.  In  witness  whereof  I  have  hereunto  set  my  hand,  and 
affixed  my  official  seal,  at  my  office  in  the  county  of  San  Luis 
Obispo,  on  the  day  and  year  in  this  certificate  first  above  written. 
"[Seal.]  C.  H.  Clement,  Notary  Public." 

In  this  condition  the  mortgage  was  recorded  on  the  19th  day  of 
May,  1883. 

Before  the  note  became  due.  Cook  was  adjudged  to  be  an  insol- 
vent debtor,  and  his  assignee  in  insolvency  took  possessio^n  of  all 
his  property,  including  the  mortgaged  crop.  The  plaintiff  made  no 
effort  to  foreclose  his  mortgage,  or  to  subject  the  mortgaged  prop- 
erty to  the  payment  of  his  debt.  The  note  has  never  been  paid, 
and  Cook  is  insolvent  and  unable  to  pay  it.  It  is  alleged  in  the 
complaint  that  the  failure  to  state  correctly  in  the  certificate  the 
year  when  the  acknowledgment  was  taken,  and  to  insert  in  the 
body  of  the  certificate  "the  name  and  quality  of  the  officer"  who 
made  it,  destroyed  the  lien  of  the  mortgage  as  against  the  assignee, 
and  left  the  mortgaged  crop  free  and  clear  of  all  claim  thereto  by 
the  plaintiff.  It  is  further  alleged  that  but  for  these  defects  in  the 
certificate  the  mortgage  "would  have  been  a  good  and  valid  lien 
upon  a  valuable  growing  crop,  and  would  have  amply  secured  the 
said  promissory  note.''  The  court  below  found  the  facts  to  be  sub- 
stantially as  above  stated,  but  further  found  "that  said  mortgage 
would  not  have  secured  said  note ;  that  said  crop  was  not  valuable, 
and  was  and  is  wholly  valueless ;''  and,  as  a  conclusion  of  law, 
"that  plaintiff  has  not  suft'ered  any  damage  or  loss  by  reason  of 


GENERAL    NATURE  13 

the  act  or  acts  of  defendants,  or  any  of  them."  Judgment  was  en- 
tered in  favor  O'f  the  defendants,  and  from  that  judgment  the  plain- 
tiff appealed;   the  case  coming  here  on  the  judgment  roll. 

We  do  not  think  it  necessary  to  consider  the  question  principally 
discussed  by  counsel,  namely,  as  to  the  sufficiency  of  the  certificate 
of  acknowledgment.  The  Code  declares  that,  "for  the  official  mis- 
conduct or  neglect  of  a  notary  public,  he  and  the  sureties  on  his 
official  bond  are  liable  to  the  parties  injured  thereby  for  all  the 
damages  sustained."  Pol.  Code,  §  801.  But  it  is  clear  that  no 
action  will  lie  to  recover  damages  if  no  damages  have  been  sus- 
tained. The  findings  are  responsive  to  the  issues,  and  must  be 
presumed  to  have  been  justified  by  the  evidence.  It  is  urged,  how- 
ever, that  the  plaintiff  was  at  least  entitled  to  recover  no^minal  dam- 
ages. But  why  should  he  have  nominal  damages  if  he  suffered  no 
actual  damage?  The  Code  does  not  seem  to  justify  this  contention, 
and,  at  any  rate,  we  think  it  is  a  case  where  in  this  court  the  maxim 
de  minimis  non  curat  lex  should  be  applied.  The  judgment  should 
be  affirmed. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion 
the  judgment  is  affirmed. 


3.  Nominal  Damages  Establish  Rights 


WEBB  V.  PORTLAND  MFG.  CO. 
(Circuit  Court  of  the  United  States,  1S3S.    3  Sumn.  189,  Fed.  Cas.  No.  17,322.) 

Bill  in  equity  by  Joshua  Webb  against  the  Portland  Manufactur- 
ing Company  to  restrain  the  diversion  of  water  from  plaintiff's 
mill.  On  the  stream  on  which  the  mill  was  situated  were  two  dams, 
the  distance  between  which  was  about  40  or  50  rods,  occupied  by 
the  mill-pond  of  the  lower  dam.  Plaintiff  owned  certain  mills  and 
mill  privileges  on  the  lower  dam.  Defendants  also  owned  certain 
other  mills  and  mill  privileges  on  the  same  dam.  To  supply  water 
to  one  of  such  mills,  defendants  made  a  canal  froni  the  pond  at  a 
point  immediately  below  the  upper  dam.  The  water  thus  with- 
drawn by  them  for  that  purpo'Se  was  about  one-fourth  of  the  water 
to  which  defendants  were  entitled  as  mill-owners  on  the  lower  dam, 
and  was  returned  into  the  stream  immediately  below  that  dam. 

Story,  J.o  *  *  *  j  can  very  well  understand  that  no  action 
lies  in  a  case  where  there  is  damnum  absque  injuria;  that  is,  where 
there  is  a  damige  done  without  any  wrong  or  violation  O'f  any  right 

«  Part  of  the  opinion  is  oniilted. 


1.4  NOMINAL   DAMAGES 

of  the  plaintiff.  But  I  am  no't  able  to  understand  how  it  can  cor- 
rectly  be  said,  in  a  legal  sense,  that  an  action  will  not  lie,  even  in 
case  of  a  wrong  or  violation  of  a  right,  unless  it  is  followed  by 
some  perceptible  damage,  which  can  be  established  as  a  matter  of 
fact;  in  other  words,  that  injuria  Sine  damno  is  not  actionable. 
See  Mayor  of  Lynn,  etc.,  v.  Mayor  of  London,  4  Term  R.  130,  141, 
143,  144;  Com.  Dig.  "Action  on  the  Case,"  B  1,  2.  On  the  con- 
trary, from  my  earliest  reading,  I  have  considered  it  laid  up  among 
the  very  elements  of  the  common  law  that  wherever  there  is  a 
wrong  there  is  a  remedy  to  redress  it;  and  that  every  injury  im- 
ports damage  in  the  nature  of  it ;  and,  if  no  other  damage  is  estab- 
lished, the  party  injured  is  entitled  to  a  verdict  for  nominal  dam- 
ages. A  fortiori,  this  doctrine  applies  where  there  is  not  only  a 
violation  of  a  right  of  the  plaintiff,  but  the  act  of  the  defendant,  if 
continued,  may  become  the  foundation,  by  lapse  of  time,  of  an  ad- 
verse right  in  the  defendant ;  for  then  it  assumes  the  character,  not 
merely  of  a  violation  O'f  a  right  tending  to  diminish  its  value,  but 
goes  to  the  absolute  destruction  and  extinguishment  of  it.  Under 
such  circumstances,  unless  the  party  injured  can  protect  his  right 
from  such  a  violation  by  an  action,  it  is  plain  that  it  may  be  lost  or 
destroyed,  without  any  pO'Ssible  remedial  redress.  In  my  judgment, 
the  common  law  countenances  no  such  inconsistency,  not  to  call  it 
by  a  stronger  name.  Actual,  perceptible  damage  is  not  indispens- 
able as  the  foundation  of  an  action.  The  law  tolerates  no  further 
inquiry  than  whether  there  has  been  the  violation  of  a  right.  If 
so,  the  party  injured  is  entitled  to  maintain  his  action  for  nominal 
damages  in  vindication  of  his  right,  if  no  other  damages  are  fit  and 
proper  to  remunerate  him. 

[The  court  then  cites  and  discusses  the  case  of  Ashby  v.  White, 
2  Ld.  Raym.  938.] 

The  principles  laid  down  by  Lord  Holt  are  so  strongly  com- 
mended, not  only  by  authority,  but  by  the  common  sense  and  com- 
mon justice  of  mankind,  that  they  seem  absolutely,  in  a  judicial  view, 
incontrovertible.  And  they  have  been  fully  recognized  in  many 
other  cases.  In  the  case  of  Ashby  v.  White,  as  reported  by  Lord 
Raymond  (2  Ld.  Raym.  953),  Lord  Holt  said:  "If  the  plaintiff  has 
a  right,  he  must  of  necessity  have  means  to  vindicate  and  maintain 
it,  and  a  remedy,  if  he  is  injured  in  the  exercise  or  enjoyment  of  it; 
and,  indeed,  it  is  a  vain  thing  to  imagine  a  right  without  a  remedy ; 
for  want  of  right  and  want  of  remedy  are  reciprocal.''  S.  P.  6 
Mod.  53. 

The  note  o-f  Mr.  Sergeant  Williams  to  Mellor  v.  Spateman,  1 
Saund.  346a,  note  2 ;  Wells  v.  Watling,  2  W.  Bl.  1233  ;  and  the  case 
of  the  Tunbridge  Dippers,  Weller  v.  Baker,  2  Wils.  414 — are  direct 
to  the  purpose.  I  am  aware  that  some  of  the  old  cases  inculcate 
a  different  doctrine,  and  perhaps  are  not  reconcilable  with  that  of 
Lord  Holt.    There  are  also  some  modern  cases  which  at  first  view 


GENERAL   NATURE 


15 


seem  to  the  contrary.    But  they  are  distinguishable  from  that  now 
in  judgment;   and,  if  they  were  not,  ego  assentior  scgevoloe. 

On  the  other  hand,  Alarzetti  v.  Williams,  1  Barn.  &  Adol.  415, 
goes  the  whole  length  of  Lord  Holt's  doctrine ;  for  there  the  plain- 
tiff recovered,  notwithstanding  no  actual  damage  was  proved  at  the 
trial ;  and  Mr.  Justice  Taunton  on  that  occasion  cited  many  authori- 
ties to  show  that  where  a  wrong  is  done,  by  which  the  right  of  the 
party  may  be  injured,  it  is  a  good  cause  of  action,  although  no  ac- 
tual damage  be  sustained.  In  Hobson  v.  Todd,  4  Term  R.  71,  73, 
the  court  decided  the  case  upon  the  very  distinction,  which  is  most 
material  to  the  present  case,  that  if  a  commoner  might  not  main- 
tain an  action  for  an  injury,  however  small,  to  his  right,  a  mere 
wrong-doer  might,  by  repeated  torts,  in  the  course  of  time  estab- 
lish evidence  of  a  right  o-f  common.  The  same  principle  was  after- 
wards recognized  by  Mr.  Justice  Grose,  in  Pindar  v.  Wadsworth, 
2  East,  162.  But  the  case  of  Bower  v.  Hill,  1  Bing.  N.  C.  549,  fully 
sustains  the  doctrine  for  which  I  contend ;  and,  indeed,  a  stronger 
case  of  its  application  cannot  well  be  imagined.  There  the  court 
held  that  a  permanent  obstruction  to  a  navigable  drain  O'f  the  plain- 
tiff's, though  choked  up  with  mud  for  16  years,  was  actionable,  al- 
though the  plaintiff  received  no  immediate  damage  thereby;  for, 
if  acquiesced  in  for  20  years,  it  would  become  evidence  of  a  renun- 
ciation and  abandonment  of  the  right  of  way.     *     *     * 

Upon  the  whole,  without  going  further  into  an  examination  of 
the  authorities  on  this  subject,  my  judgment  is  that,  whenever  there 
is  a  clear  violation  of  a  right,  it  is  not  necessary  in  an  action  of  this 
sort  to  show  actual  damage ;  that  every  violation  imports  damage ; 
and,  if  no  other  be  proved,  the  plaintiff  is  entitled  to  a  verdict  for 
nominal  damages ;  and  a  fortiori  that  this  doctrine  applies  when- 
ever the  act  done  is  of  such  a  nature  as  that  by  its  repetition  or 
continuance  it  may  become  the  foundation  or  evidence  of  an  ad- 
verse right.  See,  also,  Mason  v.  Hill,  3  Barn.  &  Adol.  304,  5  Barn. 
&  Adol.  1.  But  if  the  doctrine  were  otherwise,  and  no  action  were 
maintainable  at  law,  without  proof  of  actual  damage,  that  would 
furnish  no  ground  why  a  court  of  equity  should  not  interfere,  and 
protect  such  a  right  from  violation  and  invasion  ;  for,  in  a  great 
variety  of  cases,  the  very  ground  of  the  interposition  of  a  court  of 
equity  is  that  the  injury  done  is  irremediable  at  law,  and  that  the 
right  can  only  be  permanently  preserved  or  perpetuated  by  the 
powers  of  a  court  of  equity/ 

7  That  nominal  damacjes  may  be  awarded  when  a  right  is  Invaded,  sef. 
also,  I^rson  v.  Chase,  post,  p.  107,  aud  Murphy  v.  City  of  Fond  du  Lac,  post, 
p.  132. 


16  NOMINAL    DAMAGES 


4.  New  Trials  and  Costs 


rOTTER  V.  MELLEN. 

(Supreme  Court  of  Minnesota,  1886.  36  Minn.  122,  30  N.  W.  43S.) 
Vanderburgh,  J.  Action  for  deceit  in  the  sale  of  a  laundry, 
including  the  fixtures  and  good-will  of  the  business.  The  evidence 
tended  to  show  that  the  defendants  falsely  represented  to  the  plain- 
tiff that  the  weekly  receipts  of  the  business  were  largely  in  excess 
of  what  they  actually  were,  and  that  the  plaintiff  was  thereby  in- 
duced to  become  the  purchaser.  This,  if  true,  was  sufficient  to  make 
O'Ut  a  case  of  actionable  fraud,  and  for  the  recovery  of  such  dam- 
ages as  plaintiff'  might  be  shown  to  have  suff'ered.  Pilmore  v.  Hood, 
5  Bing.  N.  C.  97;  Sedg.  Dam.  *91.  The  action  was,  however,  dis- 
missed by  the  court  for  insufficiency  of  the  proof  of  damages.  The 
price  paid  was  prima  facie  evidence  of  the  value  of  the  property 
and  business,  as  it  was  represented,  but  there  is  no  direct  evidence 
O'f  the  extent  of  the  damages ;  that  is  to  say,  how  much  less  the 
business  was  worth  than  it  was  represented.  Yet  there  was  some 
evidence  of  damage  to  go  to  the  jury.  Plaintiff  must  necessarily 
have  been  put  to  trouble  and  expense ;  and,  according  to  the  evi- 
dence in  his  behalf,  he  had  been  led  to  believe  that  the  receipts 
exceeded  the  expenses  by  $20  or  more  per  week,  and  that  the  busi- 
ness was  a  profitable  one.  In  this  he  was  disappointed,  and  he  lost 
his  time  and  labor  in  attempting  to  carry  it  on,  though  the  evi- 
dence also  tended  to  show  that  the  business  and  receipts  in- 
creased under  his  management,  with  substantially  the  same  ex- 
penditures as  before ;  and,  conceding  that  he  was  strictly  entitled 
to  nominal  damages  only,  he  would  nevertheless  be  entitled  to  his 
costs.     Greenman  v.  Smith,  20  Alinn.  418  (Gil.  370). 

This  action  is  not  trivial  or  vexatious,  nor  do^es  it  'belong  to  the 
class  commonly  called  "hard  actions."  By  taking  the  case  from 
the  jury,  the  substantial  rights  of  the  plaintiff"  were  violated,  and 
for  this  error  there  should  be  a  new  trial.  Smith  v,  Sutts,  2  Johns. 
(N.  Y.)  9;  Eaton  v.  Lyman,  30  Wis.  46;  Allaire  v.  Whitney,  1 
Hill  (N.  Y.)  484;  Sedg.  Dam.  *51;  1  Suth.  Dam.  13,815.  Order 
reversed. 


GENERAL   NATURE  17 

JONES  V.  KING. 

(Supreme  Court  of  Wisconsin,  1873.     33  Wis.  422.) 

Lyon,  J.^  This  is  an  action  ior  slander.  The  complaint  charges 
the  speaking  by  the  defendant,  to  and  concerning  the  plaintiff,  of 
certain  slanderous  words,  imputing  to  the  latter  the  committing 
of  divers  criminal  offenses.  The  defendant,  by  his  answer,  denies 
the  speaking  of  some  of  the  slanderous  words  set  out  in  the  com- 
plaint, and  admits  the  speaking  oi  others  of  them,  and  alleges,  by 
way  of  mitigation,  that  the  plaintiff  provoked  him,  bv  charging 
him  with  crime,  and  by  applying  to  him  grossly  insulting  epithets, 
to  utter  the  language  complained  of.  The  evidence  shows  that  the 
parties  casually  met,  and  engaged  in  a  conversation,  which  at 
first  was  reasonably  good-natured,  but  soon  became  an  angry  ver- 
bal altercatio-n,  in  which  vile  epithets  and  charges  of  crime  were 
freely  hurled  by  each  at  the  other.  *  *  *  The  jury  returned 
a  verdict  for  the  defendant,  upon  which,  after  a  motion  for  a  new- 
trial  had  been  overruled,  judgment  was  rendered  dismissing  the 
complaint,  with  costs. 

The  plaintiff  appeals,  and  his  counsel  claims  that  there  should 
have  been  a  verdict  for  nominal  damages,  at  least,  which,  while 
it  would  have  only  carried  nominal  costs  foT  the  plaintiff,  would 
have  defeated  the  defendant's  rights  to  recover  costs.  The  claim 
of  the  learned  counsel  is  doubtless  correct.  The  speaking  of  words 
by  the  defendant,  to  and  concerning  the  plaintiff,  imputing  to  him 
a  criminal  offense,  as  charged  in  the  complaint,  is  admitted  by  the 
answer.  The  plaintiff  was  therefore  entitled  to  a  verdict  for  at 
least  nominal  damages,  without  introducing  any  testimony,  and 
without  regard  to  the  testimony  which  was  introduced  on  the  trial ; 
and  such  verdict  would  have  defeated  the  recovery  of  costs  by  the 
defendant.     *     *     * 

In  Laubenheimer  v.  Mann,  19  Wis.  519,  it  was  held  that  a  judg- 
ment O'f  nonsuit,  although  erroneous,  will  not  be  reversed,  if  it  ap- 
pear that  the  plaintiff  is  only  entitled  to  nominal  damages,  if  the 
case  be  one  in  which  the  defendant  would  recover  costs,  notwith- 
standing there  is  a  judgment  for  nominal  damages  rendered  against 
him.  That  was  an  action  for  a  penalty,  and  was  within  the  juris- 
diction of  a  justice  of  the  peace.  Hence,  had  the  plaintiff  recovered 
nominal  damages,  the  defendant  wo-uld  have  been  entitled  to  costs, 
the  same  as  upon  a  nonsuit.  In  Mecklem  v.  Blake,  22  Wis.  495, 
99  Am.  Dec.  68,  which  was  an  action  to  recover  damages  for  alleged 
breaches  of  the  covenants  of  seisin  and  against  incumbrances  in 
a  deed  of  land,  the  court  followed  the  decision  in  Laubenheimer 
V.  Mann,  and  refused  to  reverse  a  judgment  dismissing  the  com- 

8  I'arl  of  the  opiniou  is  omiltcd. 
CooLEY  Dam. — 2 


18  NOMINAL   DAMAGES 

plaint,  although  it  appeared  that  the  plaintiff  was  entitled  to  re- 
cover, but  only  to  recover  nominal  damages.  The  fact  was  en- 
tirely overlooked  that  such  damages,  in  that  action,  would  have 
entitled  the  plaintiff  to  costs.  Hence,  in  Eaton  v.  Lyman,  30  Wis. 
42  (which  was  also  an  action  on  the  covenants  co^ntained  in  a  con- 
veyance of  real  estate),  Mecklem  v.  Blake  was  overruled  as  to  the 
point  we  are  considering;  and,  it  appearing  that  the  plaintiff  was 
entitled  to  nominal  damages,  we  reversed  a  ju-dgment  of  nonsuit 
against  them. 

We  are  entirely  satisfied  with  this  decision,  and  believe  that  it 
establishes  the  correct  rule  in  all  actions  sounding  in  co'Utract  to 
which  it  is  applicable.  But  there  is  a  class  of  actions  denominated 
in  the  books  "hard  actions,"  to  which  a  different  rule  has  been  ap- 
plied in  numerous  cases.  Of  these  actions,  and  of  the  rules  relat- 
mg  to  new  trials  which  are  applicable  to  them,  a  learned  author 
says :  "Hard  actions  strictly  include  o^nly  civil  proceedings,  involv- 
ing in  their  nature  some  peculiar  hardship,  arising  from  the  odium 
Attached  to  the  alleged  oft"ense,  or  the  severity  of  the  punishment 
which  the  law  inflicts  on  the  offender  in  the  shape  of  damages.  To 
this  belong  most  actions  arising  ex  delicto.  Trespass,  slander, 
libel,  seduction,  malicio'US  prosecution,  criminal  conversation,  de- 
ceit, gross  negligence,  actions  upon  the  statute,  or  qui  tarn  ac- 
tions, prosecuted  by  informers,  and  penal  actions,  prosecuted  by 
special  public  bodies  or  the  public  at  large,  are  ranged  under  this 
head.  But  as  they  partake,  less  or  more,  in  their  nature  and  ef- 
fect, of  prosecutions  foT  criminal  offenses,  the  rules  that  govern 
in  granting  or  refusing  new  trials,  and  the  reason  of  those  rules, 
are  drawn  from  criminal  cases,  rather  than  civil."  1  Grah.  &  W, 
New  Tr.  p.  503,  c.  14. 

It  is  scarcely  necessary  to  say  that  in  criminal  prosecutions,  after 
trial  and  verdict  for  the  defendant,  a  new  trial  is  never  granted. 
But  the  rule  is  not  as  broad  in  the  class  of  civil  actions  mentioned 
above ;  yet  in  those  actions  it  is  much  broader  in  favor  of  defend- 
ants than  in  other  civil  actions.  In  the  volume  last  above  cited, 
we  find  the  following  statement:  "It  is  a  general  rule,  with  but  few 
exceptions,  that  in  penal,  and  what  are  denominated  'hard  actions,' 
the  court  will  not  set  aside  the  verdict,  if  for  the  defendant,  al- 
though there  may  have  been  a  departure  from  strict  law  in  the 
finding  of  tl>e  jury.''  Page  353.  And,  again,  on  page  523 :  "In 
hard  actions,  a  new  trial  will  not  be  granted,  especially  if  the  ver- 
dict be  for  the  defendant,  although  against  evidence,  nor  unless 
some  rule  of  law  be  violated."  The  author  proves  the  correctness 
of  the  principles  and  rules  thus  laid  down  by  him,  by  references 
to  large  numbers  of  cases,  both  English  and  American ;  and  he 
satisfactorily  demonstrates  that,  in  a  case  like  the  present  one,  a 
new  trial  cannot  be  granted  without  a  violation  of  well-settled  rules 
of  law. 


GENERAL   NATURE  19 

Perhaps  as  satisfactory  a  statement  of  the  law  on  this  subject  as 
can  be  found  is  contained  in  Jarvis  v.  Hatheway,  3  Johns.  (N.  Y.) 
ISO,  3  Am.  Dec.  473.  Judge  Spencer  there  says:  "In  penal  ac- 
tions, in  actions  for  a  Hbel  and  for  defamation,  and  other  actions 
vindictive  in  their  nature,  unless  some  rule  o-f  law  be  violated  in 
the  admission  or  rejection  of  evidence,  or  in  the  exposition  of  the 
law  to  the  jury,  or  there  has  been  tampering  with  the  jury,  the 
court  will  not  give  a  second  chance  of  success."  Add  to  these 
other  conditions  which  exist  in  this  case,  to  wit,  that,  at  the  most, 
the  plaintiff  is  only  entitled  to  recover  nominal  damages,  and 
that  the  jury  have  not  disregarded  the  instructions  of  the  court, 
and  there  can  be  no  doubt  whatever  that  the  motion  for  a  new  trial 
was  properly  denied  by  the  court  below.  Our  conclusion  is  that 
the  judgment  of  the  circuit  court  must  be  affirmed.  Judgment  af- 
firmed. 


20  COMPENSATORY   DAMAGES 

COMPENSATORY  DAMAGES 
I.  Direct  Losses  ^ 

1.  In  Tort 


SCHUMAKER  v.  ST.  PAUL  &  D.  R.  CO. 

(Supreme  Court  of  Miunesota,  1891.     46  Minu.  30,  48  N.  W.  5DD,   12  L.   n. 

A.  257.) 

The  complaint  averred  that  the  plaintiff  was  a  car-repairer  in 
defendant's  employ,  to  whom  the  defendant  owed  a  duty  of  fur- 
nishing transportation  from  a  point  along  the  line  of  the  road  where 
he  had  been  sent  to  repair  a  wrecked  caboose,  to  the  city  of  St. 
Paul,  which  it  failed  to  furnish,  so  that  he  was  compelled  to  walk 
to  the  village  of  White  Bear,  nine  miles  distant,  at  night  in  ex- 
tremely cold  and  dangerous  weather  and  that,  owing  to  his  unpre- 
paredness  for  exposure  by  reason  of  reliance  on  defendant's  per- 
formance of  its  duty,  he  was  made  sick,  contracted  rheumatism  and 
has  been  permanently  injured. 

Collins,  j,2  *  *  *  'pj-^g  important  question  in  this  case,  how- 
ever, is  whether,  from  the  complaint,  it  appears  that  defendant  is 
liable  for  the  injuries  which  resulted  from  plaintiff's  efforts  to  ob- 
tain shelter  and  food  on  the  occasion  referred  to ;  the  former, 
as  before  stated,  arguing  that,  as  alleged,  they  are  too  remote,  and 
are  not  the  proximate  results  of  its  act.  *  *  *  it  must  no-t 
be  forgotten  that  the  gravamen  of  the  action  is  the  negligence  and 
carelessness  of  the  defendant  in  leaving  plaintiff  at  a  place  where 
he  could  not  procure  either  shelter  or  food.  It  is  an  action  in  tort, 
and  not  foT  a  breach  of  contract.  It  is  the  negligence  of  the  de- 
fendant which  is  complained  of,  and  not  the  breach  of  a  contract 
to  return  the  plaintiff  to  St.  Paul  when  he  had  performed  his  labor. 
It  was,  of  course,  essential  that  the  plaintiff's  relation  with  the 
defendant  be  made  to  appear,  for,  unless  he  was  a  servant  to  whom 
the  defendant  owed  a  duty,  there  could  arise  no  liability  by  rea- 
son of  its  neglect  to  perform  that  duty.  The  relation  of  master 
and  servant  first  having  been  shown  to  exist,  the  law  fixes  the 
duty  of  the  former  towards  the  latter,  and  a  violation  of  this  duty 
is  a  wrong,  not  a  breach  of  the  contract.  This,  then,  is  an  action 
in  which  the  wrongdoer  is  liable  for  the  natural  and  probable  con- 

iFor  discussion  of  principles  see  Hale  on  Damages  (2d  Ed.)  §§  22,  23. 
2  Part  of  tlie  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


DIRECT  LOSSES 


21 


sequences  of  its  negligent  act  or  omission  ;  the  general  rules  which 
limit  the  damages  in  actions  of  tort  being,  in  many  respects,  dif- 
ferent  from   those  in  actions   on  contracts.     The   injury  must  be 
the  direct  result  of  the  misconduct  attributed,  and  the  general  rule 
in  respect  to  damages  is  that  whoever  commits  a  trespass  or  other 
wrongful  act  is  liable  for  all  the  direct  injury  resulting  therefrom, 
although  such  resulting  injury  could  not  have  been  contemplated 
as  a  probable  result  of  the  act  done.     1  Sedg.  Dam.  130,  note,  and 
cases  cited;    Clifford  v.  Railroad  Co.,  9  Colo.  333,  12  Pac.  219,  a 
case  much  like  this.     He  who  commits  a  trespass  must  be  held 
to  contemplate  all  the  damages  which  may  legitimately  flow  from 
his  illegal  act,  whether  he  may  have  fo^reseen  them  or  not;    and, 
so  far  as  it  is  plainly  traceable,  he  must  make  compensation  for 
the   wrong.     The   damages   cannot   be   considered   too   remote   if, 
according   to   the  usual    experience  of  mankind,   injurious  results 
ought  to  have  been  apprehended.     It  is  not  necessary  that  the  in- 
jury in  the  precise  form  in  which  it,  in  fact,  resulted,  should  have 
been  foreseen.     It  is  enough  that  it  now  appears  to  have  been  a 
natural  and  probable  consequence.     Hill  v.  Winsor,  118  Mass.  251. 
The  question  is  whether  the  negligent  act  complained  of — leav- 
ing the  plaintiff  in  the  open  country  in  the  nighttime,  in  extremely 
cold  and  dangerous  weather,  a  long  distance  from  shelter  or  food 
— was  the  direct  cause  of  the  injuries  mentioned  in  the  complaint, 
or  whether  it  was  a  remote  cause,  for  which  an  action  will  not  lie, 
and  it  must  be  taken  for  granted  that  the  walk  of  nine  miles  and 
incident   exposure  brought  abo^ut  the   alleged   sickness,  pain,   and 
disability.     There   was    no   intervening   independent   cause   of  the 
injury,  for  all  of  the  acts  done  by  the  plaintiff,  his  effort  to  seek 
protection  from  the  inclement  and  dangerous  weather,  were  legiti- 
mate, and  compelled  by  defendant's  failure  to  reconvey  him  to  the 
city.     Had  he  remained  at  the  caboose,  and  lost  his  hands,  or  his 
feet,  or  perhaps  his  life,  by  freezing,  no  doubt  could  exist  of  the 
defendant's  liability.     It  must  not  be  permitted  to  escape  the  con- 
sequences of  its  wrong  because  the  injuries  were  received  in  an 
effort  to   avoid  the  threatened   danger,  or  because  they   differ  in 
form  or  seriousness  from  those  which  might  have  resulted  had  the 
plaintiff  made  no  such  effort.     An  efficient,  adequate  cause  being 
found  for  the  injuries  received  by  plaintiff,  it  must  be  considered 
as  the  true  cause,  unless  another,  not  incident  to  it,  but  independ- 
ent of  it,  is  shown  to  have  intervened  between  it  and  the  result. 
This  is  the  substance  of  very  clear  statements  of  the  law  found  in 
Kellogg  v.  Railway  Co.,  26  Wi-s.  223,  7  Am.  Rep.  69,  and  in  Rail- 
way Co.  V.  Kellogg,  94  U.  S.  469,  24  L.  Ed.  256.     And  upon  the 
point  now  under  consideration  we  fail  to  distinguish  between  the 
case  at  bar  and  Brown  v.  Railway  Co..  54  Wis.  342,  11  N.  W.  356. 
911,  41  Am.  Rep.  41— an  action  brought  to  recover  for  like  damages 


22  COMPENSATORY   DAMAGES 

said  to  have  been  caused  by  directing  passengers  to  alight  from  a 
train  at  a  place  about  three  miles  distant  from  their  destination. 
At  all  events,  the  question  as  to  what  was  the  proximate  cause  of 
a  plaintiff's  injuries  is  usually  one  to  be  determined  by  a  jury.  As 
was  said  in  Railway  Co.  v.  Kellogg,  supra,  the  true  rule  is  that 
what  is  the  proximate  cause  of  an  injury  is  ordinarily  one  for  a 
jury.  It  is  not  a  question  of  science  or  legal  knowledge.  It  is  to 
be  determined  as  a  fact,  in  view  of  the  circumstances  attending 
it.     *     *     * 


WATSON  V.  RHEINDERKNECHT. 
(Supreme  Court  of  Minnesota,  1901.     82  Minn.  235,  84  N.  W.  798.) 

Action  by  M.  W.  Watson  against  James  Rheinderknecht  to  re- 
cover damages  alleged  to  have  been  sustained  by  plaintiff  by  rea- 
son of  an  assault  and  battery  committed  by  defendant.  The  al- 
tercation arose  out  of  an  attempt  to  recover  possession  of  certain 
sheep  which  defendant  had  sold  and  delivered  to  plaintiff.  A  dis- 
pute having  arisen  as  to  the  quality  of  the  animals  delivered  de- 
fendant attempted  to  take  possession  of  the  property  forcibly  and 
meeting  with  resistance  assaulted  plaintiff'.  There  was  a  verdict 
for  defendant,  and  from  an  order  denying  a  new  trial  plaintiff  ap- 
peals. 

CoivUNS,  J.3  *  *  *  "vV^e  think  it  conclusively  established  that 
the  assault  and  battery  upon  the  plaintiff  was  without  the  slightest 
justification,  that  the  defendant  was  the  aggressor  from  beginning 
to  end,  and  that  the  jury  should  have  found  for  the  plaintiff  in  some 
substantial  amount ;  not  nominal  damages  merely.  The  trial  court 
should  have  so  instructed. 

The  court  also  erred  in  some  of  its  rulings  when  receiving  tes- 
timony. The  defendant,  young  and  vigorous,  received  no  inju- 
ries, while  the  plaintiff  a  feeble  man  in  the  neighborhood  of  60 
vears  of  age,  was  so  injured  that  he  was  unable  to  leave  his  ho-use 
for  two  weeks,  and  during  that  time  was  daily 'attended  by  a  phy- 
sician. In  1863,  while  serving  in  the  army,  he  had  been  injured 
by  the  explosion  of  a  shell,  for  which  injury  he  was  receiving  a 
pension  at  the  time  of  the  assault  and  battery.  His  counsel  at- 
tempted to  show  as  part  of  his  case  the  physical  condition  he  was 
in  just  prior  to  the  assault,  arising  from  this  injury,  and  how  and 
to  what  extent  his  condition  had  been  affected  by  the  acts  of  the 
defendant.  The  court  held  this  evidence  inadmissible  at  that  time, 
and  that  it  was  proper  in  rebuttal  only.  It  subsequently  ruled  that 
such  testimony  was  incompetent  for  any  purpose,  and  refused  to 

3  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


DIRECT   LOSSES 


23 


permit  plaintiff  to  show  whether  his  condition  at  the  time  of  the 
trial  was  due  to  injuries  for  which  defendant  was  responsible. 

The  burden  was  upon  the  plaintiff  to  prove  such  of  his  injuries 
as  were  the  direct  and  proximate  result  of  defendant's  acts,  and 
in  doing  this  it  was  proper  to  show  in  what  respect,  and  to  what 
extent,  his  present  condition  could  be  attributed  to  the  assault  and 
battery,  and  what  could  be  more  pro-perly  established  as  the  result 
of  his  army  experience.  The  injury  for  which  plaintiff'  was  re- 
ceiving a  pension  affected  his  health  and  enfeebled  him  unques- 
tionably, but  that  fact  would  not  deprive  him  of  the  right  to  re- 
cover the  direct  consequences  of  the  defendant's  tort— to  recover 
such  damges  as  could  be  shown  to  be  the  direct  result  of  that 
wrong.  That  the  plaintiff  was  in  ill  health,  no  matter  the  cause, 
was  no  excuse  for  defendant's  acts,  and  would  not  relieve  him  from 
resulting  consequences.  The  defendant  could  not  be  held  to  re- 
spond for  injuries  arising  out  of  other  causes,  but  as  to  those  for 
which  he  Avas  the  efficient  cause  an  action  would  lie. 

The  rule  is  that  the  perpetrator  of  a  tort  is  responsible  for  the 
direct  and  immediate  consequences  thereof,  whether  they  may  be 
regarded  as  natural  or  probable,  or  whether  they  might  have  been 
co^ntemplated,  foreseen,  or  expected,  or  not.  It  is  not  necessary, 
to  the  liability  of  a  wrongdoer,  that  the  result  which  actually  fol- 
lows should  have  been  anticipated  by  him.  It  is  the  general  char- 
acter of  the  act,  and  not  the  general  result,  that  the  law  primarily 
regards  in  this  connection.  8  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  598, 
602,  and  cases  cited. 

This  rule  has  been  adopted  in  this  state  in  an  action  for  personal 
injuries  arising  out  of  the  negligence  of  a  common  carrier  (Purcell 
V.  Railway  Co.,  48  Minn.  139,  50  N.  W.  1034,  16  L.  R.  A.  203), 
where  it  was  said:  "But  when  the  act  or  omission  is  negligence  as 
to  any  and  all  passengers,  well  or  ill,  any  one  injured  by  the  neg- 
ligence must  be  entitled  to  recover  to  the  full  extent  of  the  injury 
so  caused,  without  regard  to  whether,  owing  to  his  previous  con- 
dition of  health,  he  is  more  or  less  liable  to  injury." 

It  was  error  to  exclude  testimony  tending  to  show  that  the  in- 
juries received  by  the  plaintiff  in  the  army  had  been  aggravated, 
intensified,  and  increased  by  reason  of  the  defendant's  unlawful 
act,  and  to  just  what  extent.  Nor  can  these  rulings  be  reconciled 
with  those  subsequently  made,  under  which  defendant's  counsel 
'was  allowed  to  go  fully  and  minutely  into  plaintiff's  condition, 
actual  and  asserted,  the  efficient  cause  of  which  was  the  explosion 
of  the  shell,  and  was  permitted  to  show  that  plaintiff  had  applied 
for  an  increase  of  pension  two  or  three  times  prior  to  the  encounter 
with  plaintiff,  and  his  alleged  physical  condition  when  making 
these  applications;  the  result  being  that  defendant  was  allowed  to 
fully  prove  plaintiff's  physical  condition,  as  shown  and  claimed  by 
him   in  his  applications  to  the  government,  caused  by  the  army 


24  COMPENSATORY   DAMAGES 

injury,  while  plaintiff  was  prohibited  from  showing  in  what  man- 
ner and  tO'  what  extent  this  particular  condition  had  been  affected, 
increased,  and  aggravated  by  defendant.  *  *  *  Order  reversed, 
and  a  new  trial  granted,* 


2.  In  Contract 


J.  WRAGG  &  SONS  CO.  v.  MEAD. 

(Supreme  Court  cf  Iowa,  1903.     120  Iowa.  319,  94  N.  W.  856.) 

Weaver,  J.  Defendant  conveyed  to  plaintiff's  by  warranty  deed 
a  tract  of  land  in  the  town  O'f  Waukee.  Plaintiffs  were  then  en- 
gaged in  the  nursery  business  two  miles  from  Waukee,  and  allege 
that  they  bought  the  land  to  be  used  as  a  place  of  storage  for 
nursery  stock  shipped  to  them  from  other  dealers,  which  stock  was 
to  be  resold  and  shipped  tO'  their  customers  over  the  railroads  pass- 
ing through  that  town.  The  use  to  which  the  property  was  to  be 
put,  it  is  further  alleged,  was  made  known  to  defendant  before  the 
purchase  was  consummated.  It  appears,  however  that  prior  to  the 
conveyance  defendant  had  leased  the  land  for  a  year  tO'  one  Carter, 
who  refused  to  yield  to  plaintiff's.  Defendant  claims  to  have  for- 
gotten the  fact  of  the  lease  until  after  the  deed  was  made,  but  on 
the  next  day  it  is  conceded  he  went  to  plaintiffs  and  informed  them 
of  the  oversight,  and  tried  to  adjust  the  matter,  but  failed  in  his 
effort  so  to  do.  Later  plaintiff's  attempted  to  get  possession  of 
the  premises,  but  were  ejected  by  Carter  by  legal  proceedings  of 
which  defendant  had  notice.  The  only  evidence  offered  upon  the 
claim  of  damages  is  to  the  effect  that,  by  reason  of  the  failure  to 
secure  possession  of  the  land  as  a  place  of  storage,  plaintiff's  were 
O'bliged  to  haul  all  nursery  stock  received  by  them  during  the  sea- 
son to  their  home  nursery,  two  miles  distant,  and  haul  the  same 
back  again  to  the  railroad  station  as  shipments  were  required  to 
meet  the  demands  of  their  trade,  and  the  extra  expense  and  cost 
thus  necessarily  incurred  amounted  to  $585.  The  district  court 
ruled  that  such  damages  were  too  remote  to  support  a  recovery, 
and  sustained  defendant's  motion  to  strike  the  testimony.  There 
being  no  other  evidence  of  damage  offered,  the  cause  was  taken 
from  the  jury,  and  judgment  entered  against  plaintiff's  for  costs. 

The  correctness  of  this  ruling  of  the  trial  court  is  the  only  ques- 
tion presented  by  the  appeal.     That  damages  which  are  the  natural 

*  See.  also,  Vosburs  v.  Putney.  78  Wis.  85.  47  N.  W.  99  (1890) ;  SO  Wil. 
523.  50  ,N.  W.  403,  14  L.  R.  A.  226,  27  Am.  St.  Rep.  47  (1S91). 


DIRECT  LOSSES  25 

and  proximate  consequence  of  the  breach  of  a  contract,  or  are  such 
as  may  reasonably  be  supposed  to  have  been  in  the  contemplation 
of  the  parties  at  the  time  they  made  the  contract  as  the  probable 
consequence  of  the  breach  of  it,  may  be  recovered  from  the  party  in 
default,  is  a  general  rule  approved  by  a  multitude  of  authorities. 
Frequent  difficulty  has  been  found,  however,  in  the  application^  of 
this  principle,  and  the  cases  are  sometimes  in  apparent  conflict. 
In  the  case  before  us  appellants  rely  chiefly  upon  the  latter  phase 
of  the  rule  cited,  insisting  that,  as  appellee  was  informed  of  the 
use  to  which  appellants  proposed  to  put  the  premises,  the  parties 
must  have  contemplated  that  damages  of  the  kind  claimed  would 
be  sustained  by  the  purchasers  in  the  event  possessio^n  could  not 
be  promptly  given.  The  proposition  is  not  sound.  The  breach 
of  which  appellants  complain  is  the  existence  of  an  outstanding 
lease  of  the  premises  conveyed.  The  injury  directly  and  naturally 
resulting  from  such  breach  is  the  loss  of  the  use  or  possession  of 
the  premises  for  one  year ;  and  it  follows  of  necessity  that,  generally 
speaking,  the  measure  of  damages  is  the  value  of  the  thing  lost— 
the  value  of  the  use  of  the  premises  for  the  period  during  which  the 
grantees  have  been  excluded  therefrom. 

It  is  the  appellee's  co'venant  against  incumbrances  which  has 
been  broken,  and  the  law  fixing  the  measure  of  damages  in  such 
cases  is  well  settled.  See  Van  Wagner  v.  Van  Nostrand,  19  Iowa. 
422,  and  Guthrie  v.  Russell,  46  Iowa,  269,  26  Am.  Rep.  135,  and 
cases  hereinafter  cited.  In  an  action  upon  a  covenant  against  in- 
cumbrances, where  the  breach  alleged  is  an  outstanding  lease  of 
the  premises  conveyed,'  the  measure  of  damages  is  the  rental  value 
of  the  land  for  the  unexpired  term.  Alexander  v.  Bishop,  59  Iowa, 
572,  13  N.  W.  714;  Clark  v.  Fisher,  54  Kan.  403,  38  Pac.  493;  Ed- 
wards V.  Clark,  83  Mich.  246,  47  N.  W.  112,  10  L.  R.  A.  659;  Fritz 
v.  Pusey,  31  Minn.  368,  18  N.  W.  94;  Porter  v.  Bradley,  7  R.  I. 
538;  Moreland  v.  Metz,  24  W.  Va.  119,  49  Am.  Rep.  246;  Rickert 
V.  Snyder,  9  Wend.  (N.  Y.)  416;  Christy  v.  Ogle,  33  111.  295 ;  Weth- 
erbee  v.  Bennett,  2  Allen  (N.  Y.)  428. 

Assuming,  then,  that  the  general  rule  is  as  laid  down  in  these  au- 
thorities— and  we  find  none  to  the  contrary — does  the  fact  of  ap- 
pellee's knowledge  of  the  intended  use  of  the  premises  have  the 
effect  to  except  the  case  at  bar  from  its  operation?  The  informa- 
tion! given  appellee  was  that  plaintiffs  intended  to  use  the  land  for 
the  storage  of  nursery  stock.  With  that  fact  in  mind  when  he  con- 
veyed the  land,  defendant  may  properly  be  held  to  have  contem- 
plated that  a  loss  of  the  possession  for  a  year  would  be  an  injury 
or  damage  to  appellants  to  the  rental  value  of  such  premises  for 
the  special  purpose  to  which  it  was  intended  to  devote  them,  and 
if  such  sum  was  greater  than  the  rentaj  value  for  general  or  ordi- 
nary purposes  he  could  have  no  right  to  complain.  This  was  the 
utmost  extent  of  his  lial>ility.     But  no  evidence  was  introduced  or 


26  COMPENSATORY   DAMAGES 

offered  tending  to  show  the  value  of  the  use  of  the  land  for  this 
or  any  other  purpose. 

The  cost  or  expense  of  hauling  the  stock  from  the  railroad  station 
to  the  appellants'  nursery  and  back  again  was  contingent,  remote, 
and  not  the  natural  or  immediate  result  of  the  breach  of  appellee's 
covenant.  So  far  as  shown,  appellants  simply  continued  to  carry 
on  their  business  as  they  had  been  doing  for  years.  It  cannot  be 
presumed  that  this  land  afforded  the  only  convenient  opportunity 
in  or  about  Waukee  to  store  and  keep  their  stock.  If  instead  of 
two  miles  appellant's  nursery  had  been  ten  or  twenty  miles  distant, 
and  they  saw  fit  to  haul  their  stock  home  at  an  expense  of  $1,000 
or  $1,500,  co'uld  it  reasonably  be  said  that  the  parties  contemplated 
the  possibility  of  such  stupendous  damages  arising  from  the  loss 
of  a  year's  use  of  a  small  tract  of  land  sold  at  a  valuation  of  $800? 
Or,  if  the  outstanding  lease  had  proved  to  be  for  a  term  of  five  o-r 
ten  years  instead  of  one  year,  could  appellants  expect  to  continue 
this  excessive  expenditure  and  recover  it  again  from  their  grantor? 
It  would  seem  a  self-evident  proposition  that  such  damages  are  nei- 
ther the  direct,  natural,  or  proximate  consequence  of  the  breach 
of  the  appellee's  covenant  against  incumbrances,  and  are  too  re- 
mote and  unusual,  not  to  say  unreasonable,  to  have  been  within 
the  contemplation  of  the  parties  to  the  transaction. 

The  appellants'  claim  comes  within  the  class  disapproved  by  this 
court  in  Prosser  v.  Jones,  41  Iowa,  674;  Mihills  M.  Co.  v.  Day, 
50  Iowa,  252;  Riech  v.  Bolch,  68  Iowa,  526,  27  N.  W.  507.  See, 
also,  Candy  v.  Candy,  10  Hun  (N.  Y.)  88;  Lovejoy  v.  Morrison, 
10  Minn.  136  (Gil.  108);  O'Conner  v.  Nolan,  64 'ill.  App.  357; 
Gunter  v.  Beard,  93  Ala.  227,  9  South.  389. 

It  may  be  admitted  that  if  appellants,  on  the  strength  of  their 
purchase  of  the  land,  and  before  learning  of  the  existence  oi  the 
lease,  had  expended  money  or  labor  in  preparing  to  go  into  posses- 
sion, and  such  expense  was  rendered  unavailing  by  the  refusal  of 
the  tenant  to  vacate,  they  would  be  in  a  position  to  demand  a  re- 
covery of  the  special  damages  thus  sustained.  But  no  such  case 
is  made.  The  sole  item  of  damage  claimed  is  the  alleged  expense 
incurred  in  hauling  the  nursery  stock,  and  for  this  no  right  of  ac- 
tion existed. 

The  judgment  of  the  district  court  was  right,  and  is  affirmed. 


CONSEQUENTIAL  LOSSES  27 

II.  Consequential  Losses  ' 
1.  Proximate  and  Remote  Consequential  Losses 


GILSON  V.  DELAWARE  &  H.  CANAL  CO. 

(Supreme  Court   of  Vermont,  1892.     65   Vt  213,  26   Atl.   70;    36  Am.   St 

Rep.  802.) 

Action  by  E.  P.  Gilson.  receiver  of  the  Dorset  Marble  Company, 
against  the  Delaware  &  Hudson  Canal  Company,  to  recover  dam- 
ages for  the  flooding  of  plaintiff's  quarry,  alleged  to  be  due  to  the 
diversion  of  a  water  course.     The  evidence  tended  to  prove  that 
the   defendant   had,   by  the   construction  of  its  railroad  embank- 
ment, diverted  an  ancient  water  course  from  its  accustomed  chan- 
nel  into  plaintiff's  quarry,  and  had  also  collected  and  discharged 
surface  water  into   said   quarry.     The   railroad   of   the   defendant, 
at  the  point  complained  of,  was  constructed  in  1884,  along  a  steep 
hillside.     At  one  point  there  had  been  for   many  years  a  water 
course  which  drained  at  certain  seasons  of  the  year  a  considerable 
territory.     From  the  point  where  this  water  course  crossed  the 
line  of  the  defendant's  railroad  the  land  gradually  descended  to- 
wards the  quarry  of  the  plaintiff'.     In  constructing  its  railroad  the 
defendant  made  no  provision  for  the  passage  of  the  water  run- 
ning in  this  water  course  underneath  its  track,  and  the  complaint 
of  the  plaintiff  was  that  the  defendant  had  thereby  diverted  this 
water  course,  and  discharged  it,  together  with  the  surface  water 
which  was   collected  by  this   embankment,  into  his  quarry.     The 
land,  at  the  point  where  the  water  course  crossed  the  line  of  the 
defendant's  railroad,  belonged  to  the  Vermont  Marble  Company, 
as  did  the  land  between  that  point  and  the  plaintiff's  quarry.     Up- 
on this  land  of  the  Vermont  Marble  Company,  and  in  close  prox- 
imity   to    the    plaintiff's    quarry,    were    two    abandoned    quarries, 
owned  by  said  Vermont   Marble  Company,  and  these  abandoned 
quarries  were  partially  filled  with  water  at  all  times.     The  effect 
of   the   defendant's    embankment,   as   constructed,   was   to   deflect 
whatever  water  ran  in  the  water  course  and  whatever  surface  wa- 
ter ran  down  the  side  hill,  and  to  conduct  it  along  the  side  and  into 
the  first  of  these  abandoned  quarries.     When  this  quarry  became 
filled  with  water  the  water  would  overflow  into  the  second  aban- 
doned  quarry,  which  lay  adjacent  to  the  quarry  of  the  plaintiff. 
This  quarry  was  separated  from  the  plaintiff's  quarry  by  what  ap- 
peared to  be  a  solid  wall  of  rock.     In  January,  1888,  occurred  a 
freshet  in  the  course  of  which   freshet  large  quantities  of  water 

B  For  discussion  of  princiiilcs,  see  Hale  on  Damages    CJtl  i:d.)  §§  24-29. 


28  COMPENSATORY   DAMAGES 

ran  down  the  hillside,  were  turned  by  the  defendant's  embank- 
ment, and  discharged  into  the  first  abandoned  quarry.  This  quar- 
ry was  filled  up  by  the  unusual  flood  of  water,  and  thereupon  the 
water  overflowed  into  the  second  abandoned  quarry,  rising  in  that 
quarry  to  a  point  considerably  above  that  at  which  it  ordinarily 
stood.  From  this  quarry  it  burst  through  the  dividing  wall  which 
separated  it  from  the  plaintiff's  quarry,  whereby  the  damage  com- 
plained of  was  done.  The  evidence  of  the  defendant  tended  to- 
show  that  the  ancestors  of  the  plaintiff,  at  some  time  previous  to 
the  construction  of  the  defendant's  railroad,  had,  in  the  excava- 
tion of  the  plaintift"s  quarry,  encroached  some  8  or  10  feet  upon 
the  lands  of  the  Vermont  Marble  Company,  and  thereby  so  weak- 
ened the  dividing  wall  that  it  had  burst  through  imder  the  pres- 
sure of  the  water.  The  defendant  claimed  that  if  the  ancestors 
of  the  plaintiff  had  trespassed  upon  the  lands  of  the  Vermont 
Marble  Company,  and  in  so  doing  so  weakened  the  dividing  wall 
as  to  occasion  the  injury  in  question,  the  plaintiff'  could  not  re- 
cover, and  requested  the  court  to  so  instruct  the  jury.  This  the 
court  declined  to  do.  There  was  judgment  for  plaintiff,  and  de- 
fendant excepts. 

RowEivL,  J.^  It  is  a  maxim  of  the  law  that  the  immediate,  not 
the  remote,  cause  of  an  event  is  regarded.  In  the  application  of 
this  maxim,  the  law  rejects,  as  not  constituting  ground  for  an  ac- 
tion, damage  not  flowing  proximately  from  the  act  complained 
of.  In  other  words,  the  law  always  refers  the  damage  to  the  prox- 
imate, not  the  remote,  cause.  It  is  laid  down  in  many  cases  and 
by  leading  text  writers  that,  in  order  to  warrant  a  finding  that  neg- 
ligence or  an  act  not  amounting  to  wanton  wrong  is  the  proxi- 
mate cause  of  an  injury,  it  must  appear  that  the  injury  was  the 
natural  and  probable  sequence  of  the  negligence  or  the  wrongful 
act,  and  that  it  was  such  as  might  or  ought  to  have  been  foreseen 
in  the  light  of  the  attending  circumstances;  but  this  rule  is  no 
test  in  cases  where  no  intervening  efficient  cause  is  found  between 
the  original  wrongful  act  and  the  injurious  consequences  com- 
plained of,  and  in  which  such  consequences,  although  not  prob- 
able, have  actually  flowed  in  unbroken  sequence  from  the  original 
wrongful  act. 

This  is  well  illustrated  by  Stevens  v.  Dudley,  56  Vt.  158,  which 
was  this:  Defendant  was  a  marshal  at  the  fair,  and,  in  chaining 
the  track  for  a  race,  he  turned  off'  a  man's  team  so  negligently 
that  the  man  was  thrown  from  his  wagon,  his  horse  broke  loose, 
and  ran  against  plaintiff's  wagon,  and  injured  him.  The  court 
below  charged  that  defendant  was  not  liable  unless  he  might  rea- 
sonably have  expected  plaintiff's  injury  to  result  from  his  act. 
Held   error,  and  that  the  coairt   should  have  charged  that  if  the 

6  Part  of  the  opinion  is  omitted  and  tlie  statement  of  facts  is  rewritten. 


CONSEQUENTIAL  LOSSES 


29 


defendant  negligently  turned  the  team  off  the  track,  and  thereby 
the   team   was  deprived   of   the   control   of   a   driver,   and   became 
frightened,   and  ran  over  plaintift"s  team,  and  caused  the  injury, 
without   any  superior,  uncontrollable  force,  or  without  the  negli- 
gence   of   a    respo.nsible   agent,    having   intervened,  the   defendant 
would   be   liable,   although   he  did  not   anticipate,   and   might  not 
have   anticipated,   such   consequences  from    his   negligent  act;    m 
other  words,  that  the  court  should  have  charged  that  if  defend- 
ant's  act   was  negligent,   and   in  the  natural   order   of  cause   and 
effect  the  plaintiff  was  injured  thereby,  the  defendant  was  liable. 
Smith  V.  Railway  Co.,  L.  R.  6  C.  P.  14,  in  the  exchequer  cham- 
ber, is  to  the  same  eft'ect.     There  the  company's  workmen,  after 
cutting  the  grasg  and  trimming  the  hedges  bordering  the  railway, 
placed  the   trimmings  in  heaps   between   the  hedge  and  the  line, 
and  allowed  them  to  remain  there  for  several  days  during  very  dry 
weather,  which  had  continued  for  some  weeks.     A  fire  broke  out 
between  the  hedge  and  the  rails,  and  burned  some  of  the  heaps 
of  trimmings  and  the  hedge,  and  spread  to  a  stubble  field  beyond, 
and  was  thence   carried  by  a  high  wind  acro'SS  the  stubble  field 
and  over  a  road,  and  burned  plaintiff's  cottage,  200  yards  away 
from  where  the  fire  began.     There  was  evidence  that  an  engine 
had  passed  the  spot  shortly  before  the  fire  was  first  seen,  but  no 
evidence  that  it  had  emitted  sparks,  nor  any  further  evidence  that 
the  fire  originated  from  the  engine;    nor  was  there  any  evidence 
that  the   fire   began   in    the   heaps   of   trimmings,   and  not  on  the 
parched   gro-und    around    them.     The    court   below   held   that   the 
plaintiff  could  not  recover,  because  no  reasonable  man  would  have 
foreseen  that  the  fire  would  consume  the  hedge,  and  pass  across  a 
stubble  field,  and  so  get  to  plaintiff's  cottage,  at  a  distance  of  200 
yards   from   the  railway,  crossing  a  road   in  its  passage.     In  the 
exchequer  chamber,  Chief  Baron  Kelly  said  that  he  felt  pressed, 
at  first,  by  this  view,  because  he  then  and  still  thought  that  any 
reasonable  man  might  well  have  failed  to  anticipate  such  a  con- 
currence of  circumstances  as  the  case  presented ;   but  that,  on  con- 
sideration, he  thought  that  was  not  the  true  test  of  defendant's 
liability;    that  it  might  be  that  defendant  did  not  anticipate,  and 
was   not   bound   to   anticipate,    that   plaintiff's   cottage   would   be 
burned  as  the  result  of  its  negligence;    but  yet,  if  it  was  aware 
that  the  heaps  were  lying  by  the  side  of  the  rails,  and  that  it  was 
a  dry  season,  and  that,  therefore,  by  being  left  there,  the  heaps 
were  likely  to  catch  fire,  defendant  was  bound  to  provide  against 
all  circumstances  that  might  result  from  this,  and  was  responsible 
for  all   natural  consequences  of  it;    and  with  this  agreed  all  the 
judges.     *     *     * 

In  the  case  at  bar  the  defendant,  for  purposes  of  its  own,  wrong- 
fully turned  the  brook  from  its  natural  channel,  and  let  it  flow 
towards  plaintiff's  quarry,  not  knowing  what  would  happen,  where- 


30  COMPENSATORY  DAMAGES 

by  large  and  unusual  quantities  of  water  were  brought  to  and 
accumulated  in  the  marble  company's  abandoned  quarries,  and 
it  was  the  duty  of  the  defendants  to  see  that  no  damage  was  there- 
by done ;  and  the  fact  that  it  did  not  know,  and  had  no  reason  to 
suspect,  that  the  plaintiff's  predecessors  had  worked  their  quarry 
out  of  bounds,  and  thereby  weakened  the  wall  between  it  and  the 
adjacent  quarry,  makes  no  difference,  unless  such  fact  consti- 
tutes contributory  negligence  imputable  to  the  plaintiff.  Now, 
an  act  or  omission  of  a  party  injured,  or  of  those  for  whose  acts 
and  omissions  he  is  responsible,  in  order  to  constitute  contribu- 
tory negligence,  must  have  related  to  something  in  respect  of 
which  he  or  they  owed  to  the  defendant,  or  to  those  in  whose 
shoes  he  stands,  the  duty  of  being  careful,  and  have  been  negli- 
gent, and  in  the  production  of  the  injury,  have  operated  as  a 
proximate  cause,  or  as  one  of  the  proximate  causes,  and  not  have 
been  merely  a  condition. 

It  follows,  therefore,  that  when  there  is  no  duty  there  can  be 
no  negligence.  In  working  their  quarry,  the  plaintiff's  predeces- 
sors did  not  know,  and  could  not  possibly  anticipate,  the  then  non- 
existent circumstances — that  years  afterwards  the  defendant  would 
build  a  new  road  where  it  did  in  1884,  and  wrongfully  turn  the 
brook  into  the  quarries  above,  whereby  their  quarry  would  be  en- 
dangered if  they  weakened  the  wall  by  working  out  of  bounds. 
Their  act  in  this  respect  was  not  wrongful  as  to  the  defendant, 
and  they  owed  the  defendant  no  duty  concerning  it,  and  therefore 
negligence  is  not  predicable  of  it,  even  though  it  was  wrongful 
as  to  the  marble  company,  with  the  rights  of  which  the  defendant 
in  no  way  connects  itself.  The  state  of  the  wall,  legally  consid- 
ered, was  not  a  proximate  cause  of  the  injury,  but  was  merely 
a  condition  that  made  the  injury  possible.     Judgment  affirmed 


rOWALIGA  FALLS  POWER  CO.  v.  SIMS. 

(Court  of  Appeals  of  Georgia,  1909.    6  Ga.  App.  749,  65  S.  E.  844.) 

Action  for  damages  by  George  Sims  against  the  Towaliga  Falls 
Power  Company.  The  plaintiff  alleged  that  during  the  year  1906 
he  was  a  tenant  of  certain  lands;  that  the  defendant  built  a  high 
dam  across  the  Towaliga  river  some  distance  below  his  residence, 
and  backed  a  large  body  of  water  on  and  over  a  great  area  of  land 
near  his  home ;  that  the  ponding  of  this  water  and  the  submerging 
of  the  vegetation  caused  malaria,  and  contaminated  and  affected 
the  air  with  poisonous  and  deleterious  gases ;  that  the  pond  was 
a  nuisance ;  that  it  made  him  and  his  family  sick,  and  caused  them 
to  lose  a  large  amount  of  time  and  tO'  incur  expenses  of  medical 
treatment  and  nursing;    and  that  he  was  deprived  of  the  use  of 


CONSEQUENTIAL  LOSSES  31 

his  premises.  By  amendment  he  set  up  that  the  pond  had  in- 
cubated, produced,  and  raised  a  great  many  mosquitoes,  which 
infested  his  land  and  premises,  from  which  he  and  his  family  suf- 
fered great  annoyance ;  that  his  home  was  rendered  uncomfortable, 
undesirable,  and  at  times  almost  uninhabitable;  that  his  premises 
were  rendered  unhealthy  and  undesirable  as  a  place  to  live ;  that 
great  injury  was  caused  to  the  land  and  to  the  enjoyment  thereof 
and  to  the  use  of  his  home;  that  mosquitoes  which  were  bred  in 
the  pond  and  which  had  not  previously  infested  it  became  a  medi- 
um for  the  transmission  of  malaria  and  did  transmit  it  to  himself 
and  his  family,  causing  them  to  have  malarial  fever,  which  they 
otherwise  would  not  have  had.  He  prayed  for  damages  on  ac- 
count of  the  injury  to  the  use  of  his  premises,  on  account  of  his 
own  sickness,  pain,  and  suffering,  on  account  of  the  loss  of  the 
services  of  his  wife  and  minor  children,  and  on  account  of  ex- 
penses incurred  in  connection  therewith. 

On  the  trial  the  plaintiff  introduced  evidence  tending  to  es- 
tablish the  allegations  of  his  petition.  The  testimony  of  the  de- 
fendant was  to  the  effect  that  the  pond  was  not  stagnant;  that 
there  was  less  stagnant  water,  etc.,  in  the  neighborhood  of  the 
plaintiff's  premises  after  the  erection  of  the  dam  than  there  was 
before ;  that  the  pond  did  not  cause  his  sickness ;  that,  if  he  was 
sick,  he  did  not  have  malarial  fever;  that  the  mosquitoes  about 
the  pond  were  not  of  the  anophelas  (the  malaria-bearing)  kind. 
The  trial  resulted  in  a  verdict  in  favor  of  the  plaintiff  for  $200: 
and  the  defendant,  having  filed  a  motion  for  a  new  trial,  which  was 
overruled,  brings  error. 

Powell,  J.^  *  *  *  One  of  the  contentions  of  the  plaintiff 
in  error  is  that  if,  as  the  testimony  of  the  expert  witnesses  strong- 
ly indicated,  the  malarial  fever  with  which  the  plaintiff  and  his 
family,  according  to  his  testimony,  suffered,  was  produced  in  them 
by  the  bite  of  a  particular  kind  of  mosquito  which  was  harmless 
and  incapable  of  carrying  the  disease  unless  it  had  first  bitten 
some  other  human  being  already  infected  with  malaria,  the  rela- 
tion between  the  maintenance  of  the  pond,  even  though  it  afforded 
a  place  for  the  breeding  of  the  mosquitoes,  and  the  final  com- 
munication of  the  disease  to  the  plaintiff,  was  too  remote.  Coun- 
sel ingeniously,  and,  we  suspect,  somewhat  facetiously,  argue 
that  the  mosquito  is  an  animal  ferae  naturae,  and  that  in  an  action 
for  damages  done  by  a  dangerous  animal  scienter  on  the  part  of 
the  person  harboring  it  is  a  necessary  allegation;  citing  Cox  v. 
Murphey,  82  Ga.  623,  9  S.  E.  604,  and  Clarendon  v.  McClelland, 
89  Tex.  483,  34  S.  W.  98,  35  S.  W.  474,  31  L.  R.  A.  669,  59  Am. 
St.  Rep.  70.  Without  making  any  specific  classification  of  mo-s- 
quitoes,  we  hold  that  they  are  a  common  pest,  and  that  the  main- 
tenance of  a  place  where  they  breed  in  unusual  numbers  is  such 

7  Purt  of  the  opiiiiun  is  omitted  and  the  statement  of  facts  is  rewritteu. 


32  COMPENSATORY   DAMAGES       - 

a  menace  to  persons  residing  nearby  as  to  make  that  place  ordi- 
narily a  nuisance;  and  that  if,  as  a  result  of  the  maintenance  of 
such  a  place,  the  mosquitoes  do  in  fact  breed  there,  as  they  other- 
wise would  not  have  bred,  and  become  inoculated  with  malaria, 
and,  in  accordance  with  what  is  naturally  to  be  expected,  fly  abroad 
and  communicate  malarial  fevers,  the  proprietor  of  the  breeding 
place  is  in  legal  contemplation  proximately  the  author  of  the  dam- 
age. 

Testimony  that  prior  to  the  creation  of  the  pond  there  were  but 
few  mosquitoes  and  no  cases  of  malarial  fever  in  the  community, 
that  the  pond  had  stagnant  pools  in  it  favorable  to  the  breeding 
of  mosquitoes,  that,  following  its  creation,  the  mosquitoes  appeared 
in  unusual  numbers,  and  an  epidemic  of  malarial  fever  broke  out 
in  the  community,  would,  in  connection  with  expert  testimony 
that  malaria  is  conveyed  by  mosquitoes,  be  relevant  circumstantial 
evidence  on  the  question  as  to  whether  the  creation  of  the  pond 
caused  the  epidemic  of  fever.  The  range  of  such  testimony,  like 
that  in  cases  of  experiments,  is  largely  within  the  discretion  of  the 
trial  judge.  Hunt  v.  Lowell  Gas  Co.,  8  Allen  (Mass.)  169,  85  Am. 
Dec.  697.     *     *     *     Judgment  affirmed. 


i 


WOOD  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  Pennsylvania,  1S96.     177  Pa.  306,  35  Atl.  G99.) 

Dean,  J.^  We  take  the  facts  as  stated  by  the  court  below,  as 
follows  :  "On  the  26th  of  October,  1893,  the  plaintifif,  having  bought 
a  return  ticket,  went  as  a  passenger  upon  the  railroad  of  the  de- 
fendant company  from  Frankford  to  Holmesburg.  After  spending 
the  day  there,  attending  to  some  matters  of  business,  he  concluded 
to  come  back  upon  a  way  train,  due  at  Holmesburg  at  5  minutes 
after  6  in  the  evening.  While  waiting  for  this  train,  the  plaintiff 
stood  on  the  platform  of  the  station,  which  was  on  the  north  side 
of  the  tracks,  at  the  eastern  end  of  the  platform,  with  his  back 
against  the  wall  at  the  corner.  To  the  eastward  of  the  station,  a 
street  crosses  the  railroad  at  grade.  How  far  this  crossing  is  from 
the  station  does  not  appear  from  the  evidence.  It  was  not  so  far 
away,  however,  but  that  persons  on  the  platform  could  see  ob- 
jects at  the  crossing.  For  at  least  150  yards  to  the  eastward  of 
the  crossing  the  railroad  is  straight,  and  then  curves  to  the  right. 
About  6  o'clock  an  express  train  coming  from  the  east  upon  the 
north  track  passed  the  station,  and  the  plaintiff,  while  standing 
in  the  position  described,  was  struck  upon  the  leg  by  what  proved 
to  be  the  dead  body  of  a  woman,  and  was  injured.  The  headlight 
of  the  approaching  locomotive  disclosed  to  one  of  the  witnesses 

8  Part  of  the  opinion  is  omitted. 


COXSEQUKNTIAL   LOSSES  33 

who  Stood  on  the  platform  two  women  in  front  of  the  train  at 
the  street  crossing,  going  from  the  south  to  the  north  side  of  the 
tracks.  One  succeeded  in  getting  across  in  safety,  and  the  other 
was  struck  just  about  as  she  reached  the  north  rail.  How  the 
woman  came  to  be  upon  the  track  there  is  nothing  in  the  evidence 
to  show.  There  was  evidence  that  no  bell  was  rung  or  whistle 
blown  upon  the  train  which  struck  the  woman  before  it  came  to 
the  crossing,  and  some  evidence  that  it  was  running  at  the  rate 
of  from  50  to  60  miles  an  hour.  Upon  this  state  of  facts,  the  trial 
judge  entered  a  nonsuit."  The  court  in  banc  having  afterwards 
refused  to  take  off  the  nonsuit,  we  have  this  appeal. 

Was  the  negligence  of  defendant  the  proximate  cause  of  plain- 
tiff's injury?  Judge  Pennypacker,  delivering  the  opinion  of  a  ma- 
jority of  the  court  below,  concluded  it  was  not,  and  refused  to 
take  off  the  nonsuit.  Applying  the  rule  in  Hoag  v.  Railroad  Co., 
85  Pa.  293,  27  Am.  Rep.  653,  to  these  facts,  the  question  on  which 
the  case  turns  is:  "Was  the  injury  the  natural  and  probable  con- 
sequence of  the  negligence — such  a  consequence  as,  under  the  sur- 
rounding circumstances,  might  and  ought  to  have  been  foreseen 
by  the  wrongdoer  as  likely  to  flow  from  his  act?"  *  *  *  The 
rule  quoted  in  Hoag  v.  Railroad  Co.,  supra,  is,  in  substance,  the 
conclusion  of  Lord  Bacoti,  and  the  one  given  in  Brown's  Legal 
Maxims.  It  is  not  only  the  well-settled  rule  of  this  state,  but  is 
generally,  that  of  the  United  States.  *  *  *  Judge  Cooley  states 
the  rule  thus :  "If  the  original  act  was  wrongful,  and  would  nat- 
urally, according  to  the  ordinary  course  of  events,  prove  injurious 
to  some  others,  and  result,  and  do^es  actually  result,  in  injury, 
through  the  intervention  of  other  causes  not  wrongful,  the  injury 
shall  be  referred  to  the  wrongful  cause,  passing  through  those 
which  were  innocent."     Cooley,  Toa-ts,  69. 

This,  also,  is  in  substance  the  rule  of  Hoag  v.  Railroad  Co.  All 
the  speculations  and  refinements  of  the  philosophers  on  the  exact 
relations  of  cause  and  eft'ect  help  us  very  little  in  the  determina- 
tion of  rules  of  social  conduct.  The  juridical  cause,  in  such  a  case, 
as  we  have  held  over  and  over,  is  best  ascertained  in  the  practical 
affairs  of  life  by  the  application  to  the  facts  of  the  rule  in  Hoag  v. 
Railroad  Co. 

Adopting  that  rule  as  the  test  of  defendant's  liability,  how  do 
we  determine  the  natural  and  probable  consequences,  which  must 
be  foreseen,  of  this  act.-'  We  answer  in  this  and  all  like  cases: 
From  common  experience  and  observation.  The  probable  conse- 
quence of  crossing  a  railroad  in  front  of  a  near  and  approaching 
train  is  death,  or  serious  injury.  Therefore,  acting  from  an  impulse 
to  self-preservation,  or  on  the  reflection  that  prompts  to  self-pres- 
ervation, we  are  deterred  from  crossing.  Our  conduct  is  controlled 
by  the  natural  and  probaljlc  consequence  of  what  our  experience 
Cooley  Dam. — 3 


34  COMPENSATORY  DAMAGES 

enables  us  to  foresee.  True,  a  small  number  of  those  who  have 
occasion  to  cross  railroads  are  reckless,  and,  either  blind  to  or  dis- 
regardful  of  consequences,  cross,  and  are  injured,  killed,  or  barely 
escape.  But  this  recklessness  of  the  very  few  in  no  degree  dis- 
proves the  foreseeableness  of  the  consequences  by  mankind  gen- 
erally. Again,  the  competent  railroad  engineer  knows  from  his 
own  experience  and  that  of  others  in  like  employment  that  to 
approach  a  grade  highway  crossing  with  a  rapidly  moving  train 
without  warning  is  dangerous  to  the  lives  and  limbs  of  the  public 
using  the  crossing.  He  knows  death  and  injury  are  the  probable 
consequences  of  his  neglect  of  duty ;    therefore  he  gives  warning. 

But  does  any  one  believe  the  natural  and  probable  consequence 
of  standing  50  feet  from  a  crossing,  to  the  one  side  of  a  railroad, 
when  a  train  is  approaching,  either  with  or  without  warning,  is 
death  or  injury?  Do  not  the  most  prudent,  as  well  as  the  public 
generally,  all  over  the  land,  do  just  this  thing  every  day,  without 
fear  of  danger?  The  crowded  platforms  and  grounds  of  railroad 
stations,  generally  located  at  crossings,  alongside  of  approaching, 
departing,  and  swiftly  passing  trains,  prove  that  the  public,  from 
experience  and  observation,  do  not,  in  that  situation,  foresee  any 
danger  from  trains.  They  are  there  because,  in  their  judgment, 
although  it  is  possible  a  train  may  strike  an  object,  animate  or 
inanimate,  on  the  track,  and  hurl  it  against  them,  such  a  conse- 
quence is  so  highly  improbable  that  it  suggests  no  sense  of  danger. 
They  feel  as  secure  as  if  in  their  homes.  To  them  it  is  no  more 
probable  than  that  a  train  at  that  point  will  jump  the  track  and 
run  over  them.  If  such  a  consequence  as  here  resulted  was  not 
natural,  probable,  or  foreseeable  to  anybody  else,  should  defend- 
ant, under  the  rule  laid  down  in  Hoag  v.  Railroad  Co.,  be  charge- 
able with  the  consequence? 

Clearly,  it  was  not  the  natural  and  probable  consequence  of  its 
neglect  to  give  warning,  and  therefore  was  not  one  which  it  was 
bound  to  foresee.  The  injury,  at  most,  was  remotely  possible,  as 
distinguished  from  the  natural  and  probable  consequences  of  the 
neglect  to  give  warning.  As  is  said  in  Railroad  Co.  v.  Trich,  117 
Pa.  399,  11  Atl.  627,  2  Am.  St.  Rep.  672:  "Responsibility  does  not 
extend  to  every  consequence  which  may  possibly  result  from  neg- 
ligence.'' What  we  have  said  thus  far  is  on  the  assumption  the 
accident  was  caused  solely  by  the  negligence  of  defendant,  or  by 
the  concurring  negligence  of  defendant  and  the  one  killed  going 
upon  the  track  with  a  locomotive  in  full  view.  This  being  an 
action  by  an  innocent  third  person,  he  cannot  be  deprived  of  his 
remedy  because  his  injury  resulted  from  the  concurrent  negligence 
of  two  others.  He  fails  because  his  injury  was  a  consequence  so 
remote  that  defendant  could  not  reasonably  foresee  it.  *  *  * 
The  judgment  is  affirmed. 


CONSEQUENTIAL  LOSSES 


2.  Consequential  Damages  for  Torts 


KENTUCKY  HEATING  CO.  v.  HOOD. 

(Court  of  Appeals  of  Kentucky,  1909.     133  Ky.  383,  118  S.  W.  337,  22  L.  R. 
A.  [N.  S.]  588,  134  Am.  St.  Rep.  457.) 

Action  for  damag-es  by  Jessie  Hood  against  the  Kentucky  Heat- 
ing Company.  There  was  a  judgment  for  the  plaintiff,  and  defend- 
ant appeals. 

Carroll,  J.  *°  The  appellee  rented  a  house  on  Walnut  street  in 
Louisville  for  the  purpose  of  subletting  rooms  to  boarders.  The 
house  consisted  of  a  basement  and  three  stories,  the  third  story 
being  an  attic  containing  two  small  bedrooms.  She  paid  as  rent 
for  the  property  $60  a  month ;  and,  when  the  incident  out  of  which 
this  suit  arose  occurred,  several  of  the  rooms  in  the  house  were 
occupied  by  persons  who  had  rented  them  from  her.  Some  of  these 
rented  rooms  had  grates,  but  they  were  not  used,  as  the  appellee 
heated  the  entire  house  by  heating  gas  furnished  by  the  Louisville 
Gas  Compa:ny.  In  May,  1907,  Mrs.  McDonald,  a  subtenant,  who 
occupied,  as  a  restaurant,  a  part  of  the  basement,  desired  to  use 
in  her  place  the  natural  gas  furnished  by  the  Kentucky  Heating 
Company  and  applied  to  this  company  to  connect  her  stove  with 
its  gas  mains.  At  this  time  there  was  in  that  part  of  the  basement, 
under  the  control  of  appellee,  three  gas  meters ;  two  that  had 
been  installed  by  the  Louisville  Gas  Company,  one  for  illuminating 
gas,  and  the  other  for  heating  gas,  the  third  meter  belonging  to 
the  Kentucky  Heating  Company.  When  the  employes  of  the 
Kentucky  Heating  Company  went  to  the  residence  for  the  purpose 
of  connecting  the  stove  of  Mrs.  McDonald  with  the  mains  of  that 
company,  they  disconnected  the  heating  pipes  of  the  Louisville 
Gas  Company,  cut  out  and  used  some  16  feet  of  the  pipe,  took 
down  the  meter,  and  threw  it  in  an  ash  barrel,  thereby  cutting 
off  all  the  heat  in  the  house  that  was  supplied  by  the'  Louisville 
Gas  Company.  As  a  result  of  this  all  the  renters  of  appellee  left, 
because  the  weather  was  too  cold  to  occupy  the  rooms  without 
heat. 

At  the  time  the  employes  cut  off  the  heat,  Mrs.  Hood  was  in 
the  house,  but  they  did  not  notify  her  what  they  were  going  to 
do,  or  what  they  did,  nor  did  she  know  anything  about  it  until  the 
renters  complained  to  her  of  having  no  heat  in  their  rooms.  When 
she  discovered  the  cause  of  the  trouble,  she  at  once  notified  the 

•  For  (li.scussirm  of  priiifiplefi.  see  Halo  on  D!Miiaj,'es  (2(1  Ed.)  §  28. 

10  Part  of  the  opinion  is  oniittod  and  the  statement  of  facts  Is  rewritten. 


;:G  compensatory  damages 

Kentucky  Heating  Company,  and  requested  it  to  repair  the  injury 
its  employes  had  done,  and  attempted  on  several  different  days 
to  get  the  company  to  replace  the  fixtures,  but  without  success. 
About  a  week  after  the  pipes  were  disconnected,  the  Louisville 
Gas  Company  sent  its  men  to  the  house,  and  they  replaced  the 
fixtures  and  turned  on  the  heat,  charging  appellee  for  this  service 
$6.  Whereupon  the  appellee  brought  this  suit  against  the  Ken- 
tucky Heating  Company  to  recover  damages  for  the  willful,  mali- 
cious, and  wrongful  acts  of  the  employes  in  interfering  with  the 
heating  fixtures  of  the  Louisville  Gas  Company,  thereby  not  only 
depriving  her  of  the  heat  that  company  furnished,  and  subjecting 
her  to  inconvenience  and  discomfort,  but  causing  the  renters  from 
whom  she  had  been  receiving  about  $160  a  month  to  leave  the 
premises.     *     *     * 

It  is  insisted  that  the  appellee  was  only  entitled  to  recover  the 
amount  expended  by  her  in  replacing  the  fixtures  taken  out  by 
the  employes  of  the  appellant  company,  but  in  this  view  we  do 
not  agree.  The  appellee  had  the  unquestioned  right  to  heat  her 
house  with  gas  furnished  by  the  Louisville  Gas  Company,  and  to 
enjoy  the  profit  she  might  have  received  from  the  persons  to  whom 
she  rented  rooms;  and  it  is  equally  plain  that  the  employes  of 
the  appellant  had  no  right  or  authority  to  in  any  manner  inter- 
fere with  or  disturb  the  fixtures  by  which  the  heat  was  obtained. 
And  the  evidence  conduces  to  show  that  at  the  time  the  heating 
fixtures  were  removed,  it  was  necessary  that  the  rooms  of  the 
house  should  be  heated  in  order  to  make  them-  comfortable  and 
habitable,  and  also  that  the  deprivation  of  the  heat  caused  the 
renters  to  leave.  As  appellant's  servants  wrongfully  deprived  ap- 
pellee of  the  convenience  and  comfort  of  having  her  house  heated, 
and  also  by  this  conduct  caused  her  to  lose  the  income  she  received 
from  the  tenants,  she  was  entitled  to  recover  as  compensation,  not 
only  the  cost  of  replacing  the  fixtures,  but  in  addition  thereto  rea- 
sonable compensation  for  the  loss  she  sustained  in  being  deprived 
of  her  tenants,  and  for  personal  inconvenience  and  discomfort. 
It  would  fall  far  short  of  the  relief  to  which  appellee  was  entitled 
to  limit  her  recovery  to  the  money  she  was  required  to  pay  out  to 
have  the  injury  repaired.  A  person  cannot  either  negligently  or 
wantonly  injure  the  property  of  another,  thereby  causing  the  other 
to  suffer  loss  in  business  or  profits,  or  in  the  denial  of  the  ordinary 
and  reasonable  comforts  he  enjoyed,  and  then  assert  that  all  the 
injured  party  is  entitled  to  recover  is  the  cost  of  replacing  the  in- 
jured property. 

Waiving,  for  the  moment,  the  question  of  exemplary  damages, 
we  may  lay  it  down  that,  whenever  a  person  is  injured  in  his  per- 
son or  property  by  the  v  rongful  act  of  another,  he  is  entitled  to 
recover  such  a  sum  as  will  fairly  compensate  him,  not  only  for 
the  actual  loss  sustained,  but  for  such  consequential  damages  as 


CONSEQUENTIAL  LOSSES  37 

may  spring  from  the  deprivation  of  business  or  profits  as  are  the 
direct  or  proximate  result  of  the  tort  complained  of,  if  such  conse- 
quential damages  are  capable  of  reasonable  ascertainment,  and  in 
addition  thereto,  the  facts  justifying  it,  compensation  for  personal 
inconvenience  and  discomfort.  In  the  case  before  us  the  loss  sus- 
tained by  appellee,  aside  from  personal  inconvenience  and  discom- 
fort, was  not  only  the  sum  she  paid  out  for  having  the  fixtures 
replaced,  but  the  loss  she  suffered  in  being  deprived  of  the  profit 
she  had  the  right  to  expect  would  be  received  from  the  renters. 
This  profit  was  not  uncertain  or  speculative.  It  was  as  reasonably 
sure  as  any  kind  of  business  profit  can  be  that  depends  upon  the 
development  or  happening  of  the  future ;  and,  furthermore,  it  was 
capable  of  reasonable  ascertainment  by  a  jury.  The  appellee,  when 
her  tenants  left,  was  receiving  from  them  a  fixed  sum.  This  in- 
come she  lost  when  they  withdrew  from  her  premises,  and  the 
loss  of  this  source  of  income  was  the  proximate  result  of  the  wrong- 
ful act  complained  of. 

It  is  not  material  whether  it  was  in  the  contemplation  of  the 
wrongdoers  that  loss  of  business  or  profit  would  result  to  the  in- 
jured party.  In  actions  for  breach  of  contracts  the  rule  generally 
held  to  is  that  only  such  damages  can  be  recovered  as  are  actu- 
ally sustained,  or  such  as  it  is  reasonable  to  conclude  were  within 
the  contemplation  of  the  parties  at  the  time  the  contract  was*  en- 
tered into.  2  Chitty  on  Contracts,  p.  1324.  But  this  measure  that 
obtains  in  contracts  will  not  be  applied  in  actions  sounding  in 
tort.  There  is  a  wide  difference  between  the  rights  and  remedies 
allowable  in  the  one  case  and  in  the  other.  1  Sutherland  on  Dam- 
ages, §  15.  It  is  the  wrongful  act  done,  and  the  consequences  that 
naturally  result  from  it,  that  the  law  looks  at  and  holds  the  wrong- 
doer 'responsible  for.  A  person  who  commits  a  tort  like  this  is 
liable  for  all  the  damages  that  naturally  flow  from,  and  are  the 
result  of,  this  wrongful  act,  although  he  may  not  at  the  time  have 
given  any  thought  to  or  have  anticipated  that  injurious  conse- 
quences would  follow.  It  is  no  excuse  or  defense  for  the  wrong- 
doer that  he  did  not  mean  to  commit  any  wrong,  or  did  not  know 
that  any  injury  or  loss  would  ensue. 

The  general  rule  in  respect  to  the  recovery  of  consequential 
damages  in  cases  of  tort  is  very  well  stated  in  Sutherland  on  Dam- 
ages (volume  1,  §  16)  :  "In  an  action  for  a  tort,  if  no  improper 
motive  is  attributed  to  the  defendant,' the  injured  party  is  entitled 
to  recover  such  damages  as  will  compensate  him  for  the  injury 
received  so  far  as  it  might  reasonably  have  been  expected  to  fol- 
low from  the  circumstances;  such  as,  according  to  common  ex- 
perience and  the  usual  course  of  events,  might  have  been  reason- 
ably anticipated.'  The  damages  are  not  limited  or  afl'cctcd  so  far 
as  they  are  compensatory,  or  by  what  was  in  fact  in  contempla- 
tion by  the  party  in  fault,     lie  who  is  responsible  for  a  negligent 


38  COMPENSATORY  DAMAGES 

act  must  answer  'for  all  the  injurious  results  which  follow  there- 
from, by  ordinary  natural  sequence.'  *  *  *  Whether  the  inju- 
rious consequences  may  have  been  'reasonably  expected'  to  have 
followed  from  the  commission  of  the  act  is  not  at  all  determinative 
of  the  liability  of  the  person  who  committed  the  act  to  respond 
to  the  person  suffering  therefrom.  *  *  *  There  need  not  be  in 
the  mind  of  the  individual  whose  act  or  omission  has  wrought 
the  injury  the  least  contemplation  of  the  probable  conseciuences 
of  his  conduct;  he  is  responsible  therefor  because  the  result  proxi- 
mately follows  his  wrongful  act  or  nonaction.  All  persons  are 
imperatively  required  to  foresee  what  will  be  the  natural  conse- 
quences of  their  acts  and  omissions,  according  to  the  usual  course 
of  nature  and  the  general  experience."  See,  also,  note  to  Wallace 
v.  Pennsylvania  R.  Co.,  195  Pa.  127,  45  Atl.  685,  52  L.  R.  A.  33 ; 
Wyant  v.  Grouse,  127  Mich.  158,  86  N.  W.  527,  53  L.  R.  A.  626; 
13  Cyc.  pp.  28,  29,  49;  Gregory  v.  Slaughter,  124  Ky.  345,  99  S.  W. 
247,  8  L.  R.  A.  (N.  S.)  1228,  124  Am.  St.  Rep.  402.     *     *     * 

Upon  the  whole  case  we  see  no  reason  for  disturbing  the  judg- 
ment, and  it  is  affirmed. 


DOW  v.  WINNIPESAUKEE  GAS  &  ELECTRIC  CO. 

(Supreme  Court  of  New  Hampshire,  1898.     69  N.  H.  312,  41  Atl.  288,  42  L. 
R.  A.  569,  76  Am.  St.  Rep.  173.) 

Case  by  Cyrus  P.  Dow  against  the  Winnipesaukee  Gas  &  Electric 
Company  for  negligently  permitting  the  escape  of  gas,  whereby 
the  plants  in  the  plaintiff's  greenhouses  were  injured  and  destroyed, 
and  the  plaintiff  was  otherwise  injured  in  his  business  as  a  florist. 
In  March,  1897,  he  was  damaged  by  the  escape  of  gas  through  a 
break  in  a  pipe  located  in  the  street  in  front  of  his  premises.  The 
escaping  gas,  permeating  through  the  ground,  entered  his  houses 
and  killed  his  growing  plants.  The  break  was  due  to  the  improper, 
careless,  and  unskillful  manner  in  which  the  pipe  was  laid,  and 
would  have  been  prevented  by  the  exercise  of  ordinary  care  and 
skill  in  laying  the  pipe. 

In  addition  to  the  direct  damage  to  his  plants,  and  certain  items 
of  expense,  the  plaintiff  claimed  special  damage  to  his  business 
resulting  from  the  fact  that  plants  which  he  thought  were  unaf- 
fected, and  sold,  proved  to  be  weakened  by  the  exposure  to  gas, 
and  did  not  grow  as  they  otherwise  would,  and  that  thereby  his 
business  reputation  was  injured. 

BlodGett,  J.^^  *  H5  *  f  hg  special  damages  claimed  and  allowed 
for  the  injury  to  the  plaintiff's  business  reputation,  on  account  of  his 
sales  of  damaged  plants,  were  not  properly  recoverable,  and  must  be 
disallowed  as  too  remote.    There  are  cases  undoubtedly  where  the 

11  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


CONSEQUENTIAL   LOSSES  39 

tort  complained  of  is  of  such  a  nature  that  the  law  will  not  nicely 
attempt  to  limit  the  amount  of  reparation,  but  will  extend  the  line 
of  relief  so  as  to  embrace  all  the  consequences  of  the  wrongdoer's 
conduct,  although  quite  remote  from  the  original  transaction  ;  but. 
as  a  general  rule,  it  may  be  said  that,  in  cases  of  tort  without 
special  aggravation,  where  the  conduct  of  the  defendant  cannot 
be  considered  so  morally  wrong  or  grossly  negligent  as  to  give 
a  right  to  exemplary  or  vindictive  damages,  the  extent  of  the  plain- 
tiff's remuneration  is  restricted  to  such  damages  as  are  the  legal 
and  natural  consequences  of  the  defendant's  wrongful  act.  1  Sedg. 
Meas.  Dam.   (7th  Ed.)   144,  and  authorities  cited. 

This  rule  has  been  recognized  in  a  multitude  of  cases,  and  when 
applied  to  the  present  case,  it  renders  the  injury  to  the  plaintiff's 
reputation  far  too  remote  for  legitimate  compensation.  The  full 
damage  to  the  plaintiff's  plants  was  a  proper  matter  for  inquiry, 
but  the  consequence  to  his  reputation  resulting  from  a  sale  of  the 
plants  to  his  customers,  "reasonably  supposing  them  sound,"  was 
obviously  beyond  the  range  of  such  inquiry,  and  conjectural  merely. 
It  was  altogether  too  shadowy  and  indirect  for  legal  consideration, 
and  must  be  regarded  as  an  unexpected,  unnatural,  and  accidental 
consequence  of  the  defendants'  wrong.  The  result  is  that  the 
plaintiff"  is  entitled  to  recover  the  damage  to  his  plants  *  *  * 
and  also  the  value  of  the  extra  coal  burned  by  him,  as  found  by 
the  trial  justice — amounting  together  to  the  sum  of  $263.  Judg- 
ment accordingly. 


3.  Consequential  Damages  for  Breach  of  Contract  *' 
(A)  In  General 


HADLEY  et  al.  v.  BAXENDALE  et  al. 

(Court  of  Exchequer,  1854.    9  Exch.  341.) 

The  plaintiffs  carried  on  an  extensive  business  as  millers  at 
Gloucester;  and  on  the  11th  of  May  their  mill  was  stopped  by  a 
breakage  of  the  crank  shaft,  by  which  the  mill  was  worked.  The 
steam  engine  was  manufactured  by  Messrs.  Joyce  &  Co.,  the  engi- 
neers, at  Greenwich,  and  it  became  necessary  to  send  the  shaft  as  a 
pattern  for  a  new  one  to  Greenwich.  The  fracture  was  discovered 
on  the  12th,  and  on  the  13th  the  plaintiffs  sent  one  of  their  serv- 
ants to  the  office  of  tlic  defendants,  who  are  the  well-known  car- 

12  For  discussion  of  priiiciiilt'S,  see  Unlc  on    I  ):iin:i;;"s  ("Jd   Ed.)  §  -0. 


40  COMPENSATORY   DAMAGES 

riers  trading  under  the  name  of  Pickford  &  Co.,  for  the  purpose 
of  having  the  shaft  carried  to  Greenwich.  The  plaintiffs'  servant 
told  the  clerk  that  the  mill  was  stopped,  and  that  the  shaft  must 
be  sent  immediately;  and  in  answer  to  the  inquiry  when  the  shaft 
would  be  taken  the  answer  was  that  if  it  was  sent  up  by  twelve 
o'clock  any  day  it  would  be  delivered  at  Greenwich  on  the  follow- 
ing day.  On  the  following  day  the  shaft  was  taken  by  the  defend- 
ants, before  noon,  for  the  purpose  of  being  conveyed  to  Green- 
wich, and  the  sum  of  £2.  4s.  was  paid  for  its  carriage  for  the  whole 
distance.  At  the  same  time  the  defendants'  clerk  was  told  that 
a  special  entry,  if  required,  should  be  made,  to  hasten  its  delivery. 
The  delivery  of  the  shaft  at  Greenwich  was  delayed  by  some  neg- 
lect, and  the  consequence  was  that  the  plaintiffs  did  not  receive 
the  new  shaft  for  several  days  after  they  would  otherwise  have 
done,  and  the  working  of  their  mill  was  thereby  delayed,  and  they 
thereby  lost  the  profits  they  would  otherwise  have  received. 

On  the  part  of  the  defendants  it  was  objected  that  these  dam- 
ages were  too  remote,  and  that  the  defendants  were  not  liable 
with  respect  to  them.  The  learned  judge  left  the  case  generally 
to  the  jury,  who  found  a  verdict  with  i25.  damages  beyond  the 
amount  paid  into  court  by  defendant,  which  was  £25. 

Alderson,  B.  We  think  that  there  ought  to  be  a  new  trial  in 
this  case;  but  in  so  doing  we  deem  it  to  be  expedient  and  neces- 
sary to  state  explicitly  the  rule  Avhich  the  judge,  at  the  next  trial, 
ought,  in  our  opinion,  to  direct  the  jury  to  be  governed  by  when 
they  estimate  the  damages. 

It  is  indeed,  of  the  last  importance  that  we  should  do  this ;  for, 
if  the  jury  are  left  without  any  definite  rule  to  guide  them,  it  will, 
in  such  cases  as  these,  manifestly  lead  to  the  greatest  injustice. 
The  courts  have  done  this  on  several  occasions ;  and  in  Blake  v. 
Railway  Co.,  21  L.  J.  Q.  B.  237,  the  court  granted  a  new  trial  on 
this  very  ground,  that  the  rule  had  not  been  definitely  laid  down 
to  the  jury  by  the  learned  judge  at  nisi  prius.  "There  are  certain 
established  rules,"  this  court  says,  in  Alder  v.  Keighley,  15  Mees. 
&  W.  117,  "according  to  which  the  jury  ought  to  find.''  And  the 
court  in  that  case  adds :  "And  here  there  is  a  clear  rule  that  the 
amount  which  would  have  been  received  if  the  contract  had  been 
kept  is  the  measure  of  damages  if  the  contract  is  broken.''  Now, 
we  think  the  proper  rule  in  such  a  case  as  the  present  is  this: 
Where  two  parties  have  made  a  contract  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive  in 
respect  of  such  breach  of  contract  should  be  such  as  may  fairly 
and  reasonably  be  considered  either  arising  naturally — i.  e.,  ac- 
cording to  the  usual  course  of  things,  from  such  breach  of  contract 
itself — or  such  as  may  reasonably  be  supposed  to  have  been  in  the 
contemplation  of  both  parties  at  the  time  they  made  the  contract, 
as  the  probable  result  of  the  breach  of  it. 


CONSEQUENTIAL  LOSSES  41 

Now.  if  the  special  circumstances  under  which  the  contract  was 
actually  made  were  communicated  by  the  plaintiffs  to  the  defend- 
ants, and  thus  known  to  both  parties,  the  damages  resulting  from 
the  breach  of  such  a  contract,  which  they  would  reasonably  con- 
template, would  be  the  amount  of  injury  which  would  ordinarily 
follow  from  a  breach  of  contract  under  these  special  circumstances 
so  known  and  communicated.  But,  on  the  other  hand,  if  these 
special  circumstances  were  wholly  unknown  to  the  party  breaking 
the  contract,  he,  at  the  most,  could  only  be  supposed  to  have  had 
in  his  contemplation  the  amount  of  injury  which  would  arise  gen- 
erally, and  in  the  great  multitude  of  cases  not  affected  by  any 
special  circumstances,  from  such  a  breach  of  contract.  For,  had 
the  special  circumstances  been  known,  the  parties  might  have  spe- 
cially provided  for  the  breach  of  contract  by  special  terms  as  to 
the  damages  in  that  case ;  and  of  this  advantage  it  would  be  very 
unjust  to  deprive  them.  Now,  the  above  principles  are  those  by 
which  we  think  the  jury  ought  to  be  guided  in  estimating  the  dam- 
ages arising  out  of  any  breach  of  contract.  It  is  said  that  other 
cases,  such  as  breaches  of  contract  in  the  nonpayment  of  money, 
or  in  the  not  making  a  good  title  to  land,  are  to  be  treated  as  ex- 
^ceptions  from  this,  and  as  governed  by  a  conventional  rule.  But 
as,  in  such  cases,  both  parties  must  be  supposed  to  be  cognizant 
of  that  well-known  rule,  these  cases  may,  we  think,  be  more  prop- 
erly classed  under  the  rule  above  enunciated  as  to  cases  under 
known  special  circumstances,  because  there  both  parties  may  rea- 
sonably be  presumed  to  contemplate  the  estimation  of  the  amount 
of  damages  according  to  the  conventional  rule. 

Now,  in  the  present  case,  if  we  are  to  apply  the  principles  above 
laid  down,  we  find  that  the  only  circumstances  here  communicated 
by  the  plaintiff's  to  the  defendants  at  the  time  the  contract  was 
made  were  that  the  article  to  be  carried  was  the  broken  shaft  of 
a  mill,  and  that  the  plaintiff's  were  the  millers  of  that  mill.  But 
how  do  these  circumstances  show  reasonably  that  the  profits  of 
the  mill  must  be  stopped  by  an  unreasonable  delay  in  the  delivery 
of  the  broken  shaft  by  the  carrier  to  the  third  person?  Suppose 
the  plaintiffs  had  another  shaft  in  their  possession,  put  up  or  put- 
ting up  at  the  time,  and  that  they  only  wished  to  send  back  the 
broken  shaft  to  the  engineer  who  made  it,  it  is  clear  that  this  would 
be  quite  consistent  with  the  above  circumstances,  and  yet  the  un- 
reasonable delay  in  the  delivery  would  have  no  effect  upon  the 
intermediate  profits  of  the  mill.  Or,  again,  suppose  that,  at  the 
time  of  the  delivery  to  the  carrier,  the  machinery  of  the  mill  had 
been  in  other  respects  defective,  then,  also,  the  same  results  would 
follow.  Here  it  is  true  that  the  shaft  was  actually  sent  back  to 
serve  as  a  model  for  a  new  one,  and  that  the  want  of  a  new  one 
was  the  only  cause  of  the  sto])page  of  the  mill,  and  tliat  the  loss 
of  profits   really  arose  from   not   sending  down   the  new  shaft  in 


42  COMPENSATORY  DAMAGES 

proper  time,  and  that  this  arose  from  the  delay  in  delivering  the 
broken  one  to  serve  as  a  model.  But  it  is  obvious  that  in  the 
great  multitude  of  cases  of  millers  sending  ofif  broken  shafts  to 
third  persons  by  a  carrier  under  ordinary  circumstances,  such  con- 
sequences would  not,  in  all  probability,  have  occurred ;  and  these 
special  circumstances  were  here  never  communicated  by  the  plain- 
tiffs to  the  defendants." 

It  follows,  therefore,  that  the  loss  of  profits  here  cannot  reason- 
ably be  considered  such  a  consequence  of  the  breach  of  contract 
as  could  have  been  fairly  and  reasonably  contemplated  by  both 
the  parties  when  they  made  this  contract.  For  such  loss  would 
neither  have  flowed  naturally  from  the  breach  of  this  contract  in 
the  great  multitude  of  such  cases  occurring  under  ordinary  cir- 
cumstances, nor  were  the  special  circumstances,  which,  perhaps, 
would  have  made  it  a  reasonable  and  nattiral  consequence  of  such 
breach  of  contract,  communicated  to  or  known  by  the  defendants. 
The  judge  ought,  therefore,  to  have  told  the  jury  that  upon  the 
facts  then  before  them  they  ought  not  to  take  the  loss  of  profits 
into  consideration  at  all  in  estimating  the  damages.  There  must 
therefore  be  a  new  trial  in  this  case.^^ 


(B)  Damages  Arising  under  Ordinary  Circumstances 


TAYLOR  V.  SPENCER. 

(Supreme  Court  of  Kansas,  1907.  75  Ivan.  152,  88  Pac.  544.) 
Action  by  W.  W.  Spencer  against  F.  D.  Taylor  and  J.  W.  Reeves 
to  recover  damages  sustained  on  account  of  the  breach  of  a  con- 
tracf.  Defendants  owned  certain  mineral  springs  at  Geuda  Springs, 
and  agreed  to  supply  plaintifif  for  five  years  with  sufficient  mineral 
water  to  supply  the  trade  at  Wichita,  Kansas.  The  contract  pro- 
vided that  plaintiff  should  supply  the  necessary  vessels  in  which 
to  ship  the  water  to  Wichita,  pay  all  expressage  and  freight  and 
use  his  best  endeavors  to  push  the  sale  of  the  water.  The  plain- 
tiff accordingly  moved  with  his  family  to  Wichita,  provided  the 
necessary  tanks,  jugs  and  bottles,  purchased  a  delivery  wagon  and 
horse,  rented  an  office,  incurred  expenses  for  advertising  and  for 
other  incidentals.  After  fifteen  months  defendants  refused  to  fur- 
nish the  water  and  the  business  ceased.  On  the  trial  the  jury 
made  special  findings  to  the  effect  that  plaintiff's  losses  for  loss 
of  time,  expenses  incurred,  etc.,  amounted  to  $2,889.  There  was  a 
judgment  in  favor  of  plaintiff  for  $2,500,  and  defendants  bring  error. 

13  See  comment  on  this  case  in  Harper  Furniture  Co.  v.  Southern  Express 
Co.,  post,  p.  53. 


CONSEQUENTIAL  LOSSES  43 

Graves,  J.**     *     *     *     The  plaintiffs  in  error  insist  that  in  any 
view  of  the  case  the  plaintiff"  could  recover  nominal  damages  only. 
The  measure  of  recovery  adopted  by  the  court  is  stated  in  instruc- 
tion 15,  which  reads:   "If  you  find  from  the  evidence  in  this  case 
that  after  the  execution  of  the  contract  introduced  in  evidence  the 
plaintiff  entered  upon  the  performance  of  his  part  of  said  contract ; 
that  he  spent  money  in  advertising  the  merits  of  said  Geuda  Springs 
mineral  water ;    that  he  expended  money  in  purchasing  the  neces- 
sary equipment   so  as  to  carry  out  the   provisions  of  his  part  of 
said  contract ;    that  he  spent  his  time  and  his  labor  in  introducing 
said  mineral  water  so  as  to  supply  the  trade  of  Wichita  and  other 
expenses   under  the  provisions  of  said  contract  up  and  until  the 
time  that  said  defendants  refused  to  ship  said  water  had  complied 
with   all  the   terms  of   said   contract — then   the  defendants   would 
not  have  the  right  to  terminate  said  contract,  and,  if  they  did  so, 
it  was  a  violation  of  their  part  of  said  agreement,  and  they  would 
be  liable  to  the  plaintiff  in  damages  for  the  amount  of  such  expen- 
ditures expended  in  good  faith  in  reliance  upon  said  contract,  less 
profits,  if  any,  you  find  accrued  to  him  during  the  time  that  said 
contract  was  being  carried  out  by  said  plaintiff",  and  in  this  con- 
nection you  are  instructed  that  the  value  of  plaintiff's  time  and 
labor  expended  in  introducing  said  mineral  water  and  in  carrying  out 
his  part  of  said  agreement  is  to  be  considered  by  you  as  legitimate 
element  of  expense  which  is  reco'verable  the  same  as  money  actually 
expended,  if  you  find  for  the  plaintiff'  as  herein  instructed.     And 
you  are  further  instructed  that  if  he  was  unable  to  enter  a  like 
business   or  employment  at  Wichita,   Kan.,,  and  that  he  made  a 
reasonable  eff'ort  to  enter  such  like  business  or  employment,  you 
may  allow  him  such  reasonable  compensation  for  lost  time  after 
the  contract  was  canceled  to  the  time  he  was  able  to  secure  other 
employment  or  engaged  in  business  as  you  may  find  he  is  entitled 
to  under  the  evidence,  and  you  may  take  into  consideration  the 
loss,  if  any,  sustained  by  the  plaintiff  in  being  compelled  to  dis- 
pose of  personal  property  which  he  had  purchased  for  the  purpose 
of  carrying  on  said  business,  and  which,  after  said  contract  had 
been  broken  by  said  defendants,  was  no  longer  useful  or  neces- 
sary to  the  plaintiff." 

We  do  not  think  this  instruction  erroneous.  The  measure  of 
damages  therein  stated  is  correct  as  applied  to  this  case.  .  The 
plaintiff  in  order  to  carry  out  the  contract  was  compelled  to  go  to 
the  city  of  Wichita  to  live.  It  was  necessary  for  him  to  provide 
proper  equipments  for  carrying  on  the  business,  and  to  incur  ex- 
penses in  advertising  the  valuable  qualities  of  the  water.  These 
expenses  were  contemplated  by  both  parties.  The  plaintiff"  by  the 
terms  of  the  contract  was  required  to  pay  all  expenses,  and  "to 

i<  Part  of  the  opluion  is  omitted  and  the  statement  of  I'acts  is  rewritten. 


44  COMPENSATORY   DAMAGES 

use  his  best  endeavors  to  push   the  sale  of  said  mineral  water.'' 
The    outcome    of   the    enterprise   was   unknown,   but  the   plaintiff 
was  willing  to  take  the  hazard  on  his  part,  in  consideration  of  the 
stipulations   in   the   contract  on   the  part  of  the  defendants.     His 
time  was  taken  from  other  enterprises  which  might  have  yielded 
remunerative    returns.      Money   was   expended  which   might   have 
been  otherwise  invested,  all  upon  the  faith  and  expectation  of  prof- 
its to  be  realized  after  a  permanent  trade  had  been  established.     If 
he  had  been  permitted  to  prosecute  the  business  during  the  time 
stipulated  in  the  contract,  he  alone  would  have  been   responsible 
for  the  results.     But,  after  the  plaintiff  had  made  the  sacrifice  and 
expenditures  necessary  to  the  initiation  of  this  new  enterprise,  the 
defendants  wrongfully  cut  off  all  the  expectations  of  growth  and 
development    entertained   by   the    plaintiff,    and    left   him   without 
business,  with  useless  equipments  on  hand,  with  no  compensation 
for  the  time  and  effort  expended,  and  his  entire  investment  a  failure. 
Under  such  circumstances  it  seems  but  fair  and  reasonable  that 
the   defendants    should    reimburse  the   plaintiff   for  all   the   direct 
losses  sustained  by  him  on- account  of  their  wrongful  acts.    We  do 
not  think  the  instruction  of  the  court  overstates  these  losses.     No 
future  profits  are  included.     The  inquiry  is  limited  to  the  actual 
loss  sustained.     The  rule  applicable  to  such  cases  is  stated  by  Jus- 
tice Bradley  in  U.  S.  v.  Behan,  110  U.  S.  338,  4  Sup.  Ct.  81,  28 
L.  Ed.   168,  thus:    "When  a  party  injured  by  the  stoppage  of  a 
contract  elects  to  go  for  damages  for  the  breach  thereof,  the  first 
and  most  obvious  damage  to  be  shown  is  the  amount  which  he 
has  been  induced  to  expend  on  the  faith  of  the  contract,  including 
a  fair  allowance  for  his  own  time  and  services.     Unless  there  is 
some  artificial  rule  of  law  which  has  taken  the  place  of  natural 
justice  in  relation  to  the  measure  of  damages,  it  would  seem  to  be 
quite  clear  that  the  claimant  ought  to  at  least  be  made  whole  for 
losses  and   expenditures.     So   far  as  appears,  they  were  incurred 
in  the  fair  endeavor  to  perform  the  contract  which  he  assumed. 
If  he  chooses  to  go  further,  and  claim  for  the  loss  of  anticipated 
profits,  he  may  do  so,  subject  to  the  rules  of  law  as  to  the  char- 
acter of  profits  which  may  be  thus  claimed.     It  does  not  lie,  how- 
ever, in  the  mouth  of  the  party  who  has  voluntarily  and  wrongfully 
put  an  end  to  the  contract  to  say  that  the  party  injured  has  not 
been  damaged,  at  least  to  the  amount  of  what  he  has  been  induced 
fairly  and  in  good  faith  to  lay  out  and  expend,  including  his  own 
services."    See,  also,  8  Am.  &  Eng.  Enc.  of  Law,  637,  638;   Bulkley 
v.  U.  S.,  19  Wall.  Z7,  22  L.  Ed.  62. 

The   general   verdict  was  for  $2,500.     According  to  the  special 
findings  it  might  properly  have  been  $2,889.     The  court  entered 
judgment  in  favor  of  the  plaintiff  for  the  lesser  amount.     *     *     * 
The  judgment  is  affirmed. 


CONSEQUEXTIAL   LOSSES  45 

HEDDEN  V.  SCHNEBLIN. 
(Court  of  Appeals  of  Missouri,  1907.    126  :Mo.  App.  47S,  104  S.  W.  SS7.) 

Action  by  B.  C.  Hedden  against  George  Schneblin  for  damages 
for  breach  of  contract.  The  plaintiff  purchased  a  dairy  of  the 
defendant  as  administrator  of  the  estate  of  one  Doubet.  The  prop- 
erty was  incumbered  by  a  chattel  mortgage  to  secure  two  sureties 
who  had  indorsed  Doubet's  note  to  a  bank  for  $988.  Plaintiff'  and 
defendant  agreed  on  a  sale  at  the  sum  of  $1,800,  but  plaintiff'  was 
able  to  pay  only  $812  of  the  purchase  price,  and,  in  order  to  effect 
the  sale,  defendant  agreed  to  lend  him  the  remainder  of  $988  for 
one  year,  and  to  make  the  loan  in  time  for  the  proceeds  to  be 
used  in  paying  off  the  debt  of  the  estate  to  the  bank,  which  would 
become  due  in  about  one  month.  The  sale  was  closed  on  this 
agreement,  and  plaintiff  paid  to  defendant  $812  and  took  posses- 
sion of  the  property.  When  the  bank  note  matured,  defendant 
failed  to  advance  the  money  necessary  to  pay  it.  and  later  refused 
to  make  the  loan  on  the  terms  agreed.  Plaintiff'  then  attempted 
to  borrow  the  money  elsewhere,  biit  was  unsuccessful.  In  the 
meantime  the  holders  of  the  chattel  mortgage,  becoming  impatient, 
had  advertised  the  property  for  sale.  The  proceeds  of  the'  sale 
were  barely  sufffcient  to  discharge  the  mortgage  debt,  and  this 
action  is  to  recover  from  defendant  in  his  individual  capacity  the 
value  of  the  property  above  the  amount  of  the  incumbrance. 

The  trial  judge  instructed  the  jury  in  substance  that  if  they 
found  the  facts  to  be  as  alleged  by  the  plaintiff'  and  that,  by  reason 
of  defendant's  failure  to  loan  the  money  to  plaintiff  according  to 
agreement,  the  property  was  lost  to  plaintiff',  they  should  assess 
his  damages  at  the  reasonable  market  value  of  the  property  over 
and  above  the  amount  of  the  mortgage,  not  to  exceed  $800.  The 
jury  returned  a  verdict  for  plaintiff'  for  $800,  and,  a  motion  for 
new  trial  being  denied,  defendant  appeals. 

Johnson,  J.^^  *  ,*  *  Passing  to  the  second  proposition  ad- 
vanced by  defendant,  we  cannot  agree  with  his  contention  that 
plaintiff'"s  recovery  should  have  been  limited  to  nominal  damages. 
Adopting  plaintiff''s  version  of  the  facts,  it  appears  that  the  actual 
value  of  the  property  exceeded  the  incumbrance  by  more  than  $800, 
the  amount  of  the  verdict;  that  plaintiff'  was  a  stranger  in  the 
community  where  the  dairy  was  operated;  that,  when  defendant 
refused  to  perform  his  agreement,  plaintiff  endeavored  unsuccess- 
fully to  borrow  the  money  elsewhere;  and  that  his  interest  in  the 
property  was  lost  to  him  in  consequence  of  defendant's  breach. 
The  general  principle  controlling  the  measurement  of  damages  in 
actions  founded  on  breach  of  contract  is  that  compensation  should 

it>  Part  ol  the  opinion  is  omitted  and  tlie  statement  of  faets  is  rewritten. 


46  COMPENSATORY  DAMAGES 

be  equal  to  the  injury,  but  only  such  consequential  damages  are 
allowed  as  may  be  said  to  be  the  natural  and  proximate  conse- 
quence of  a  breach ;  i.  e.,  such  as  ordinarily  results  in  that  class 
of  cases.  Remote,  indirect,  or  speculative  damages  are  not  recov- 
erable. Hence,  where  the  breach  is  of  an  agreement  to  lend  money 
at  a  particular  time,  the  general  rule  is  that  the  measure  of  dam- 
ages is  the  amount  of  the  difference  between  the  interest  on  the 
loan  at  the  contract  rate  and  at  the  rate  (not  exceeding  that  per- 
mitted by  law)  which  the  borrower  would  have  had  to  pay  for  the 
money  in  the  market,  since,  in  legal  contemplation,  money  is  al- 
ways in  the  market  and  procurable  at  the  lawful  rate  of  interest. 
But  the  controlling  rule  to  be  applied  in  settling  the  question  of 
whether  a  recovery  of  consequential  damages  peculiar  to  the  given 
case  should  be  allowed  is  to  ascertain  whether  from  the  terms  of 
the  contract,  considered  in  the  light  of  its  special  circumstance 
known  to  both  contracting  parties,  it, reasonably  may  be  said  that 
the  special  injury  was  the  natural  and  proximate  result  of  the 
breach  of  a  contract  made  under  such  special  circumstances.  When- 
ever a  direct  causal  relation  is  disclosed  between  the  wrongful 
act  and  an  injurious  result,  then  such  a  result  must  be  deemed  to 
have  been  within  the  contemplation  of  the  parties  at  the  time  they 
entered  into  the  contract,  and  the  delinquent  party  should  be  held 
to  answer  in  damages  for  the  special  injury  thus  inflicted.  1  Suth- 
erland on  Damages  (3d  Ed.)  §§  50,  17;  Mo.  Real  Estate  Syn.  v. 
Sims,  179  Mo.  679,  78  S.  W.  1006;  Pettit  v.  Carpenter,  86  Mo. 
App.  452;  Gallup  v.  Miller,  25  Hun  (N.  Y.)  298;  Banewur  v. 
Levenson,  171  Mass.  1,  50  N.  E.  10;  Doushkess  v.  Burger  Brewing 
Co.,  20  App.  Div.  375,  47  N.  Y.  Supp.  312;  Cole  v.  Stearns,  162 
N.  Y.  637,  57  N.  E.  1106;   Atherton  v.  Williams,  19  Ind.  105. 

Special  circumstances  exist  in  the  present  case  which  would 
make  the  application  of  the  rule  under  which  nominal  damages 
only  could  be  recovered  a  flagrant  injustice.  Plaintiff  would  not 
have  purchased  the  property  but  for  the  assurance  of  the  loan  for 
the  time  agreed.  Defendant  made  the  promise  as  an  inducement 
to  the  sale,  knowing  that  plaintiff  was  in  a  position,  owing  to 
his  lack  of  other  means  and  to  the  fact  that  the  amount  of  the 
incumbrance  as  compared  to  the  value  of  the  property  was  so 
great,  that  he  could  not  go  into  the  money  market  and  oft'er  se- 
curity on  which  he  could  hope  to  procure  a  loan.  Under  such 
special  circumstances  to  hold  that  in  legal  contemplation  the  mon- 
ey was  in  the  market  for  him,  and  that  all  he  had  to  do  was  to  go 
and  get  it,  would  be  just  as  false  as  it  would  be  unjust.  A  fiction 
of  this  character,  though  its  use  may  be  justified  as  a  shield  to 
protect  the  contract  breaker  against  liability  for  remote  damages, 
should  not  be  employed  to  protect  him  from  liability  for  those 
damages  he  must  have  known  would  be  sustained  by  the  injured 


CONSEQUENTIAL  LOSSES  47 

party.     *     *     *     Plaintiff   was   the   victim   of  defendant's   wrong, 
and  should  be  adequately  compensated. 

The  instructions  given  expound  the  law  fairly;    and  it  follows 
that  the  judgment  must  be  affirmed.     All  concur. 


HAMMER  V.  SCHOENFELDER. 
(Supreme  Court  of  Wisconsin,  1879.    47  Wis.  455,  2  N.  W.  1129.) 

Cole,  J.^^  The  only  question  in  this  case  relates  to  the  rule  of 
damages  for  the  failure  of  the  defendant  to  supply  ice  according 
to  his  contract.  The  plaintiff  was  a  butcher  by  trade,  and  the 
defendant  undertook  and  agreed  to  furnish  him  with  what  ice  he 
might  require  for  his  ice  box,  in  which  he  kept  fresh  meat,  at 
a  stipulated  sum,  for  the  season  of  1878. 

About  the  last  of  July  the  defendant  stopped  supplying  ice,  and 
refused  any  longer  to  furnish  the  plaintiff  with  ice  for  his  box. 
In  consequence  the  plaintiff'  lost  considerable  fresh  meat,  which 
spoiled  for  want  of  ice.  The  defendant  had  supplied  the  plaintiff 
with  ice  the  previous  season,  and  well  understood  the  use  to  be 
made  of  the  ice  which  he  contracted  to  deliver.  Nothing  was 
paid  by  the  plaintiff  on  the  contract.     *     *     * 

Of  course  this  was  an  action  for  a  breach  of  the  contract,  but 
a?  the  defendant  fully  knew  the  use  which  the  plaintiff  wished  to 
make  of  the  ice  he  agreed  to  deliver,  namely,  to  supply  his  ice 
box  in  order  to  preserve  fresh  meat,  there  is  no  hardship  in  al- 
lowing the  plaintiff  to  recover  "not  only  general  damages— that 
is,  such  as  are  the  necessary  and  immediate  result  of  the  breach— - 
but  special  damages,  which  are  such  as  are  the  natural  and  proxi- 
mate consequence  of  the  breach,  although  not  in  general  follow- 
ing as  its  immediate  eft'ect."     *     *     * 

Now,  as  the  defendant  was  acquainted  with  all  the  special  cir- 
cumstances in  respect  to  this  contract — knew  for  what  purpose  the 
ice  agreed  to  be  furnished  by  him  was  to  be  used — he  should  fully 
indemnify  the  plaintiff  for  the  loss  he  sustained  by  non-delivery 
of  the  ice,  and  he  was,  therefore,  justly  chargeable  in  damages 
for  the  meat  spoiled  in  consequence  of  the  inability  of  the  plaintiff 
to  procure  ice  elsewhere.  This  is  a  legitimate  element  to  be  con- 
sidered in  estimating  the  plaintiff's  damages.  It  is  a  consequence 
which  "may  reasonably  be  supposed  to  have  been  in  the  contem- 
plation of  both  i)arties,  at  the  time  of  making  the  contract,  as 
the  probable  result  of  the  breach  of  it."     *     *     * 

10  i'art  of  the  oiiiniou  is  oiuiUcd. 


48  COMPENSATORY   DAMAGES 


(C)  Damages  Arising  from  Circumstances  Not  Contemplated 


HUNT  BROS.  CO.  v.  SAN  LORENZO   WATER  CO. 

(Supreme  Court  of  California,  190C.     150  Cal.  51,  87  Pac.   1093, 
7  L.  R.  A.  [N.  S.]  91.3.) 

Action  by  the  Hunt  Bros.  Company  and  others  against  the 
San  Lorenzo  Water  Company.  From  a  judgment  for  defend- 
ant, rendered  on  sustaining  a  demurrer  to  the  complaint,  the 
plaintiffs  having  failed  to  amend,  the  plaintiffs  appeal. 

The  action  was  brought  to  recover  $124,496.98,  damages,  result- 
ing from  the  destruction  of  certain  property,  the  injury  to  other 
property,  and  a  loss  of  profits  from  an  established  business,  all 
occasioned  by  a  fire,  which  occurred  on  April  12,  1901,  which  fire, 
occurred  without  any  fault  on  the  part  of  plaintiff.  The  corpo- 
ration, Hunt  Bros.  Company,  was  the  owner  of  all  said  property. 
The  plaintiff  was  engaged  in  the  business  of  fruit  canning,  pack- 
ing, manufacturing  cans,  storage  of  fruits,  canned  goods,  etc. 
The  property  injured  and  destroyed  consisted  of  certain  buildings 
used  and  occupied  in  the  conduct  of  said  business,  machinery,  and 
other  implements  used  in  such  business,  and  the  stock  on  hand, 
and  74  cottages  occupied  by  employes  of  plaintiff. 

The  allegations  of  the  complaint  upon  which  it  is  sought  to  hold 
defendant  liable  for  the  amount  of  this  loss  are  substantially  as 
follows :  Defendant  was  a  water  company,  engaged  in  the  business 
of  supplying  water.  Some  time  between  September,  1900,  and 
March,  1901,  plaintiff  and  defendant  entered  into  an  agreement, 
whereby  defendant  agreed  to  lay  a  six-inch  main  from  one  of  its 
mains  charged  and  supplied  with  water,  to  a  point  near  one  cor- 
ner of  plaintiff's  premises,  to  connect  said  premises  with  this  new 
main  by  a  service  pipe,  and  to  thereupon  supply  plaintiff,  by  means 
thereof,  with  water.  Defendant  further  agreed  that  it  would  erect 
and  install  a  fire  hydrant  near  said  premises,  to  be  used  by  plain- 
tiff in  case  the  premises  should  take  fire,  and  connect  the  same 
with  said  main,  and  supply  plaintiff,  by  means  thereof,  with  water 
for  the  purpose  of  extinguishing  any /fire  which  might  occur  on 
said  premises.  No  time  was  specified  for  the  commencement  or 
completion  of  this  work.  Defendant  laid  the  new  main  to  a  point 
near  one  corner  of  plaintiff's  premises,  as  agreed,  but  failed  to 
install  the  service  pipe  or  the  fire  hydrant.  On  March  14,  1901, 
plaintiff  remonstrated  with  defendant  because  of  its  failure  to  do 
these  things,  and  defendant,  on  March  15,  1901,  promised  in  writ- 
ing that  it  would  "immediately  commence  the  work"  of  putting  in 


CONSEQUENTIAL  LOSSES  49 

the  service  pipe  to  connect  the  premises  with  the  main,  and  also 
that  it  would  "immediately  commence  the  work"  of  erecting  and 
installing  said  fire  hydrant  and  connecting  the  same  with  the 
main.  It  failed  to  commence  to  do  either  of  these  things  prior  to 
the  fire. 

AngELLOTTI,  J.  ^^  *  *  *  It  is  the  well-settled  general  rule  of 
damages  for  any  breach  of  contract  that  the  damages  that  can  be 
recovered  for  a  breach  are  only  such  as  may  reasonably  be  sup- 
posed to  have  been  within  the  contemplation  of  the  parties  at  the 
time  of  the  making  of  the  contract,  as  the  probable  result  of  a 
breach.  Other  damages  are  too  remote.  In  this  lies  the  distinc- 
tion between  damages  for  breach  of  contract  and  damages  for  tort; 
the  rule  as  to  tort  being  that  the  injured  person  may  recover  for 
all  detriment  proximately  caused  thereby,  "whether  it  could  have 
been  anticipated  or  not."  Section  3333,  Civ.  Code.  Such,  as  we 
understand  it  is  the  rule  declared  by  section  3300  of  the  Civil  Code, 
as  that  section  has  always  been  construed  by  this  court,  and  it  is 
the  rule  enunciated  in  the  leading  case  of  Hadley  v.  Baxendale,  9 
Exch.  341,  which  has  been  universally  accepted  and  followed. 
See  Mitchell  v.  Clarke,  71  Cal.  165,  11  Pac.  882,  60  Am.  Rep.  529. 

As  has  often  been  suggested  by  writers  upon  this  subject,  the 
remote  efTects  of  slight  causes  are  so  beyond  all  possible  concep- 
tion of  the  parties  to  a  contract,  both  in  character  and  extent,  that 
any  other  rule  would  practically  preclude  the  making  of  con- 
tracts altogether,  for  no  sane  person  could  be  expected  to  assume 
such  uncertain  and  limitless  liability.  This  rule  does  not  mean 
that  the  parties  should  actually  have  contemplated  the  very  con- 
sequence that  occurred,  but  simply  that  the  consequence  for  which 
compensation  is  sought  must  be  such  as  the  parties  may  be  rea- 
sonably supposed,  in  the  light  of  all  the  facts  known,  or  which 
should  have  been  known  to  them,  to  have  considered  as  likely 
to  follow  in  the  ordinary  course  of  things,  from  a  breach,  and 
therefore  to  have,  in  efifect,  stipulated  against.  The  understand- 
ing and  intention  of  the  parties  in  this  regard  must,  of  course,  be 
ascertained  from  the  language  of  the  contract,  in  the  light  of  such 
facts.     See  Sutherland  on  Damages,  §  45. 

Where  a  contract  calls  for  the  continuance  of  an  instituted  wa- 
ter service  for  the  purpose  of  extinguishing  fires,  loss  by  fire  as  the 
consequence  of  a  breach  may,  as  already  suggested,  be  reasonably 
supposed  to  have  been  within  the  contemplation  of  the  parties. 
This  may  also  be  true  in  the  event  of  such  a  service  contracted  to 
be  commenced  at  a  certain  definite  time  in  the  future,  especially 
if  the  special  circumstances  are  such  as  to  make  it  essential  that 
the  particular  protection  from   fire  to  be  thereby  afl"ordc{l  showM 

17  Part  of  the  opinicm  Is  ouiittod  and  the  statement  of  facts  is  rewritten. 
CooLEY  Dam. — 1 


50  COMPENSATORY   DAMAGES 

commence  at  that  time,  and  those  circumstances  were  made  known 
to  the  person  or  company  contracting  to  furnish  the  service.  As 
to  this,  however,  it  is  not  necessary  here  to  decide. 

The  contract  here  alleged  was,  in  effect,  first,  to  lay  and  install 
certain  pipes  through  which  water  for  general  use  might  be  sup- 
plied, and  to  install  one  fire  hydrant,  through  which  water  for 
use  in  the  event  of  fire  might  be  supplied ;  and,  second,  such  pipes 
and  fire  hydrant  having  been  installed,  thereupon  to  commence 
supplying  water  for  those  purposes,  and  to  continue  supplying  it 
at  certain  prescribed  rates.  No  time  whatever  was  prescribed  for 
the  completion  of  the  work  essential  to  the  furnishing  of  such  wa- 
ter, or  for  the  commencement  of  the  water  service,  except  that  it 
was  to  commence  upon  the  installation  of  the  necessary  pipes  and 
hydrant.  We  attach  no  importance  to  the  subsequent  "promise" 
of  March  15,  1901,  on  the  part  of  defendant,  that  it  would  "im- 
mediately commence  the  work"  essential  to  the  installing  of  the 
service  for  the  various  purposes  designated. 

Giving  this  additional  promise  full  force  as  a  part  of  the  contract 
between  the  parties,  there  was  therein  no  undertaking  on  the  part 
of  defendant  that  the  work  so  to  be  commenced  would  be  com- 
pleted and  the  water  service  instituted  at  any  certain  definite 
time.  There  was  no  allegation  whatever  as  to  any  special  circum- 
stances known  to  defendant,  or,  for  that  matter,  to  plaintiff,  mak- 
ing it  essential  to  the  protection  of  the  property  from  fire  that  the 
contemplated  service  should  be  commenced  within  any  particular 
time.  The  case  presented,  then,  is  one  where  the  parties_simply 
agreed  upon  the  installation  and  commencement  of  a  water  serv- 
ice for  various  purposes,  inchiding  one  hydrant  to  be  used"  for  the^ 
extinguishment  of  possible  fires,  upon  the  installation  and^com- 
mencement  of  which  the  plaintiff  was  to  commence  paying,  at  cer- 
tain prescribed  rates,  for  the  water  furnished ;  no  definite  time  for 
the  commencement  of  such  service  being  fixed,  and  no  special  cir- 
cumstance appearing,  by  reason  of  which  it  might  be  anticipated 
that  it  was  essential  to  the  protection  of  plaintiff's  property  from 
fire  that  the  service  should  be  commenced  within  any  particular 
time,  or,  as  plaintiff  claims,  within  a  reasonable  time. 

Under  such  circumstances,  it  appears  very  clear  to  us  that  dam- 
age by  fire  to  plaintiff's  property  cannot  reasonably  be  supposed 
to  have  been  within  the  contemplation  of  the  parties,  as  possible 
to  be  caused  by  a  failure  on  the  part  of  defendant  to  commence 
the  water  service  agreed  upon.  The  plaintiff  not  having  stipu- 
lated for  the  limited  protection  against  fire,  to  be  furnished  there- 
by, to  commence  at  or  within  any  particular  time,  and,  under  the 
terms  of  the  contract,  paying  for  such  protection  only  from  the 
time  of  the  actual  commencement  thereof,  could  not,  until  the 
actual  commencement  of  the  service,  be  considered  as  relying  on 
such  protection,  or  on  the  commencement  thereof  at  any  particu- 


CONSEQUENTIAL   LOSSES  51 

lar  time,  in  the  slightest  degree,  and  there  was  nothing  to  war- 
rant even  a  supposition  on  the  part  of  defendant  that  plaintiff 
did  so  rely.  The  utmost  that  can  be  reasonably  contended  to  have 
been  within  the  contemplation  of  the  parties  in  this  regard  was 
that,  when  at  some  future  indefinite  time  the  hydrant  had  once 
been  installed,  and  the  service  actually  commenced,  water  would 
thenceforth  be  available,  by  means  of  the  hydrant,  for  the  ex- 
tinguishment of  possible  fires,  and  that  any  failure  to  then  have  it 
so  available,  in  the  event  of  a  fire,  might  cause  damage  to  plain- 
tiff's property.  This  was  the  full  extent  of  the  contract  of  the 
parties,  and  the  parties  could  not  be  understood  as  stipulating  for 
such  protection  prior  to  the  actual  commencement  of  the  service. 
This  being  so,  whatever  might  be  the  proper  measure  of  dam- 
age for  a  breach  of  contract  in  failing  to  install  the  service  within 
a  reasonable  time,  loss  of  property  by  fire  could  not  be  an  element 
thereof.  Until  the  actual  assumption  of  the  duty  of  such  pro- 
tection, damage  by  fire  could  not  be  held  to  be  within  the  con- 
templation of  the  parties  as  a  possible  consequence  of  a  breach, 
and  in  no  legal  sense  of  the  words  could  such  damage  be  held  to 
have  been  caused  by  the  breach  alleged,  although,  if  it  had  not 
been  for  such  breach,  water  might  have  been  available  for  the 
extinguishment  of  the  fire.  The  case  is  no  different  in  principle 
from  one  where  water  is  furnished  by  contract  for  other  than  fire 
purposes,  and  a  fire  occurs  which  could  have  been  extinguished  by 
such  water  if  it  had  been  available,  but,  owing  to  some  failure  of 
the  person  furnishing  the  water,  no  water  is  available,  and  the 
property  is  destroyed.  As  already  stated,  although  in  such  a  case 
the  breach  is,  in  one  sense  of  the  words,  a  cause  of  the  loss,  there 
could  be  no  recovery,  for  the  water  company  has  not  assumed  the 
duty  of  protecting  the  other's  property  from  fire,  and  loss  by  lire 
is  not  therefore  damage  possible  within  the  contemplation  of  the 
parties  to  the  contract.  Here,  although  water  was  ultimately  to 
be  furnished  for  fire  purposes,  the  defendant  had  not,  under  the 
terms  of  its  contract,  assumed  the  duty  of  so  protecting  plaintiff's 
property  at  the  time  of  the  fire.  *  *  *  The  judgment  is  af- 
firmed. 


BROWN  et  al.  v.  COWLES. 
(Supreme  Court  of  Nebraska,  TJOl.     72  Neb.  80(i.  101  N.  W.  1020.) 

Commissioners'  Opinion.  Action  by  Gardner  Cowles  against 
Daniel  C.  Brown  and  Abraham  L.  Hoover.  Judgment  for  plain- 
tiff.    Defendants  bring  error. 

Letton,  C.^^  This  action  was  brought  by  defendant  in  error, 
Gardner  Cowles,  as  i)laintiff,  against  James  AI.  Ncff  as  principal, 

18  l':irt  of  tlie  opinion  is  omit  ted. 


52  COMPENSATORY   DAMAGES 

and  the  other  defendants  as  sureties,  upon  an  obligation  given  to 
secure  the  faithful  performance  by  Neff  of  a  contract  made  be- 
tween Cowles  and  him  for  carrying  the  United  States  mail,  as  a 
subcontractor,  between  the  city  of  Lincoln  and  the  post  office  at 
Lancaster.  The  petition  sets  up  the  contract,  and  alleges  a  breach 
of  the  same  by  Neff's  refusing  to  further  carry  the  mail,  and  pleads 
that  the  plaintiff  was  put  to  great  expense  and  damage  in  procur- 
ing another  person  to  complete  the  contract.  A  general  denial 
was  filed  by  the  defendant,  the  case  tried  to  the  court  without  the 
intervention  of  a  jury,  and  a  judgment  rendered  in  favor  of  the 
plaintiff  for  the  sum  of  $77.40.     *     *     * 

It  is  objected  that  the  court  erred  in  the  amount  of  recovery. 
The  plaintiff  asks  judgment  for  $110.40,  the  items  of  the  claim  be- 
ing as  follows :  Hiring  one  Poppleton  to  obtain  a  man  to  complete 
the  contract,  $30;  Poppleton 's  car  fare  from  Algona,  Iowa,  to 
Lincoln,  Neb.,  $20;  increased  salary  for  a  man  to  complete  the 
contract  for  2^  years,  $45 ;  Poppleton's  hotel  expenses  and  street 
car  fare,  $10;  other  expenses  in  carrying  mail,  $5.40.  The  rule 
is  elementary  that,  in  an  action  for  damages  for  breach  of  contract, 
such  damages  only  may  be  recovered  as  are  the  probable,  direct, 
and  proximate  consequences  of  the  wrong  complained  of,  and  such 
as  may  fairly  be  supposed  to  have  been  within  the  contemplation 
of  the  parties,  at  the  time  of  the  making  of  the  contract,  as  the 
probable  result  of  the  breach  of  the  same.  It  requires  no  argu- 
ment to  show  that  the  hiring  of  a  man  in  the  state  of  Iowa,  send- 
ing him  to  Nebraska,  and  paying  his  wages,  hotel,  and  other  ex- 
penses, could  not  reasonably  be  within  the  contemplation  of  the 
parties  as  the  result  of  a  failure  of  Neff  to  perform  the  contract. 
If  Neff  could  be  charged  with  railroad  fare  from  Iowa,  he  could 
with  equal  propriety  be  charged  with  railroad  fare  from  New  York. 
There  are  no  extraordinary  conditions  requiring  such  expenditures 
pleaded  or  proved.  Such  damages  are  entirely  too  remote,  and 
cannot  be  recovered.  i 

Whatever  excess  the  plaintiff  was  compelled  to  pay  in  order  to 
procure  the  services  of  another  person  at  a  reasonable  and  proper 
rate  to  furnish  the  services  which  Neff  had  agreed  to  perform,  and 
which  the  plaintiff  was  bound  to  perform  under  his  contract  with 
the  government,  are  proper  and  necessary  items  of  damage  which 
the  plaintiff  is  entitled  to  recover  in  this  action.  By  its  terms  the 
contract  terminated  on  the  30th  day  of  June,  1902.  This  action 
was  begun  on  the  21st  day  of  March,  1901.  The  plaintiff  is  not 
entitled  to  recover  in  this  action  for  damages  which  accrued  after 
the  action  was  brought.  Wittenberg  v.  Mollyneaux,  59  Neb.  203, 
80  N.  W.  824.  Neff  refused  to  carry  out  the  agreement  on  the 
20th  day  of  December,  1899.  The  plaintiff,  therefore,  would  be 
entitled  to  recover  the  increased  compensation  which  he  was  re- 
quired to  pay  over  and  above  the  amount  of  the  contract  from  the 


CONSEQUENTIAL  LOSSES  53 

20th  day  of  December,  1899,  when  Neff  refused  to  perform,  until 
the  21st  day  of  March,  1901,  when  this  action  was  commenced. 
At  the  rate  of  $18  per  year,  this  amounts  to  $22.50.  There  is  ev- 
idtnce  that  between  the  time  that  Neff  refused  to  further  carry 
on  the  contract  and  the  time  that  a  new  contract  was  made  with 
another  subcontractor  the  plaintiff  was  required  to  pay  the  sum 
of  $5.40  to  other  parties,  for  carrying  the  mail,  in  excess  of  the 
amount  which  he  had  agreed  to  pay  Neff.  The  plaintiff  seems 
to  be  entitled  to  the  items  of  $22.50  and  $5.40  paid  in  excess  of 
the  contract  price,  with  interest  at  7  per  cent,  frofti  the  20th  day 
of  December,  making  a  total  amount  of  $37.35. 

If  the  defendant  in  error  remits  the  sum  of  $39.85,  the  judgment 
of  the  district  court  will  be  affirmed.  Failing  to  do  so,  the  cause 
will  be  reversed  and  remanded  for  a  new  trial. 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion, 
if  the  defendant  in  error  remits  the  sum  of  $39.85  within  30  days, 
the  judgment  of  the  district  court  is  affirmed.  Failing  to  do  so, 
the  cause  is  reversed  and  remanded  for  a  new  trial. 


(D)  Notice  of  Special  Circumstances 


HARPER  FURNITURE  CO.  v.  SOUTHERN  EXPRESS  CO. 

(Supreme  Court  of  North  Carolina,  1908.     14S  N.  C.  87,  02  S.  E.  145,  30  L. 
R.  A.  (N.  S.)  483,  128  Am.  St.  Rep.  588.) 

This  was  an  action  by  the  Harper  Furniture  Company  against 
the  Southern  Express  Company  to  reco'ver  damages  for  delay  in  the 
shipment  of  an  engine  shaft.  The  evidence  showed  that  plaintiff 
was  engaged  in  the  manufacture  of  furniture,  having  their  mill 
at  Lenoir,  N.  C. ;  that  on  or  about  the  21st  of  October,  1905,  the 
Erie  City  Iron  Works  of  Erie  City,  Pa.,  shipped  to  plaintiff,  at 
Lenoir,  N.  C,  an  engine  shaft  weighing  something  like  650  pounds; 
that,  pursuant  to  the  order  of  plaintiff,  the  shipment  was  made  by 
express  over  a  line  of  connecting  carriers,  between  the  two  points, 
including  the  defendant,  and  the  shaft  was  delivered  at  Lenoir,. 
N.  C,  by  defendant  company  on  November  9,  1905,  indicating  a 
wrongful  delay  in  the  shipment  of  something  like  two  weeks. 
There  was  further  evidence  tending  to  show  that  the  furniture 
factory  for  which  the  engine  shaft  had  been  ordered,  was  neces- 
sarily closed  down  during  the  time  of  wrongful  delay,  and  that  by 
reason  of  this  loss  of  time  in  operating  the  factory  the  plaintiff 
company  suffered  damages  to  the  amount  of  $200  and  more,  aris- 
ing from  wages  paid  idle  hands  and  other  costs  incident  to  the 
delay,  and  interest  on  the  amount  of  capital  invested  in  the  mill  and 


54  COMPENSATORY   DAMAGES 

unproductive  during  said  time.  It  was  further  shown  that,  as 
soon  as  it  was  disclosed  that  the  shipment  was  delayed,  plaintiff 
company  immediately  duplicated  the  order,  and  both  shafts  werp 
delivered  at  the  same  time,  November  9th.  Plaintiff  offered  to 
show  the  amount  of  profit  which  the  mill  could  have  realized  dur- 
ing the  time  of  delay,  but  the  evidence  was  held  to  be  incompe- 
tent. At  the  close  of  the  testimony,  the  court  intimated  an  opin- 
ion that  on  the  evidence,  only  nominal  damages  could  be  recov- 
ered, and,  in  deference  to  this  intimation,  plaintiff  submitted  to  a 
nonsuit  and  appealed. 

HoKi;,  J.^®  *  *  *  The  decisions  of  this  state  are  to  the  ef- 
fect that  the  current  profits  of  a  going  manufacturing  enterprise, 
which  are  dependent  on  the  varying  cost  of  labor  and  material  and 
the  fluctuations  of  the  market  value  of  the  product,  as  a  general 
^  rule,  are  too  uncertain  to  form  the  basis  of  an  award  of  damages  in 
breaches  of  contract  affecting  the  operation  of  the  plant,  and  the 
better  rule  in  such  cases,  when  it  appears  that  substantial  damages 
are  recoverable,  is  that  such  damages  shall  be  ascertained  on  the 
basis  of  interest  on  the  capital  invested,  which  is  unproductive 
for  the  time,  with  the  addition,  under  certain  circumstances,  of 
the  pay  of  hands  idle  and  necessarily  unemployed,  and  some  other 
incidental  expenses  reasonably  referable  to  the  defendant's  wrong, 
which  may  at  times  include  an  outlay  in  the  reasonable  effort  to 
reduce  or  minirnize  the  loss.  *  *  *  ^he  judge  below  there- 
fore made  a  correct  ruling  in  rejecting  the  evidence  offered  tend- 
ing to  show  the  current  profits  of  the  plaintiff's  mill.  Lumber  Co. 
v.  Iron  Works,  130  N.  C.  584,  41  S.  E.  797;  vSharpe  v.  Railroad, 
130  N.  C.  613,  41  S.  E.  799;  Rocky  Mount  Mills  v.  Railroad,  119 
N.  C.  693,  25  S.  E.  854,  56  Am.  St.  Rep.  682 ;  Foard  v.  Railroad, 
53  N.  C.  235,  7^  Am.  Dec.  277;    Boyle  v.  Reeder,  23  N.  C.  607. 

We  are  of  opinion,  however,  that  there  was  error  in  holding 
that,  on  the  facts  appearing  from  the  evidence,  the  plaintiff  could, 
in  any  event,  recover  only  nominal  damages.  The  plaintiff  com- 
plains and  offers  evidence  tending  to  show  a  breach  of  contract  of 
carriage,  and,  as  in  other  cases  of  breach  of  contract,  it  should 
ordinarily  be  allowed  to  recover  the  damages  naturally  incident 
to  the  breach,  and  which  may  be  reasonably  supposed  to  have  been 
in  the  mind  of  the  parties  at  the  time  the  contract  was  made. 
Where  the  goods  shipped  have  a  market  value,  and  there  is  noth- 
ing to  indicate  the  specific  purpose  for  which  they  were  ordered, 
these  damages  are  usually  the  difference  in  the  market  value  of 
the  goods  at  the  time  fixed  for  delivery  and  that  when  they  were 
in  fact  delivered.  *  *  *  When,  however,  the  goods  are  or- 
dered for  a  special  purpose,  or  for  present  use,  in  a  given  way,  and 
these  facts  are  known  to  the  carrier,  he  is  responsible  for  the  dam- 
is  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


CONSEQUENTIAL  LOSSES  55 

ages  fairly  attributable  to  the  delay  and  in  reference  to  the  pur- 
pose or  the  use  indicated,  and  it  is  not  necessary  always  that  those 
facts  should  be  mentioned  in  the  negotiations,  or  in  express  terms 
made  a  part  of  the  contract;  but,  when  they  are  known  to  the 
carrier,  under  such  circumstances,  or  they  are  of  such  a  character 
that  the  parties  may  be  fairly  supposed  to  have  them  in  contem- 
plation in  making  the  contract,  such  special  facts  become  relevant 
in  determining  the  question  of  damages.  Moore  on  Carriers,  p. 
425 ;   Hutchinson  on  Carriers,  §  1367. 

In  the  citation  from  Hutchinson,  after  stating  the  general  rule 
to  be  the  difference  in  the  market  value  of  the  goods,  the  author 
says :  "But  there  may  be  circumstances  under  which  the  applica- 
tion of  this  rule  would  be  inequitable.  There  may  be,  and  fre- 
quently are,  cases  in  which  for  special  reasons  the  shipper  may 
desire  that  the  transportation  of  his  goods  may  be  hastened,  and 
if,  with  a  knowledge  of  these  circumstances,  the  carrier  should 
unreasonably  delay  the  carriage,  or  if,  having  expressly  contracted 
to  carry  them  within  a  given  time,  or  for  a  given  purpose,  he 
should  negligently  delay  them  beyond  that  time,  or  so  as  to  de- 
feat that  purpose,  the  difference  in  the  value  of  the  goods  at  the 
time  of  their  actual  arrival  and  at  the  time  when  they  should  have 
been  delivered  may  prove  a  very  inadequate  recompense  to  their 
owner."     *     *     * 

This  limitation  on  the  general  rule  as  to  the  amount  of  dam- 
ages recoverable  for  wrongful  delay  in  the  shipment  of  goods,  and 
being  itself  an  application  of  the  third  rule  laid  down  in  the  case 
of  Hadley  v.  Eaxendale,  Woods,  Mayne  on  Damages,  p.  21,  is  fre- 
quently presented  in  cases  involving  the  making  and  shipments 
of  machinery.  In  fact,  these  are  the  cases  which  usually  call  for 
the  application  of  the  principle  stated.     *     *     * 

The  plaintiffs  were  a  firm  engaged  in  the  manufacture  and  sale 
of  furniture.  Of  this  the  title  of  the  firm,  consignee  in  the  bill  of 
lading,  taken  in  connection  with  the  character  of  the  implement 
ordered  and  shipped,  would  give  reasonable  notice.  In  this  day 
and  time,  certainly  it  is  a  matter  of  common  knowledge  that  an 
engine  shaft  is  the  part  by  which  the  power  of  the  engine  is  ap- 
plied to  the  operating  machinery.  That  it  is  essential  and  neces- 
sary for  the  purpose,  and  without  it  the  engine  itself  and  the  ma- 
chinery dependent  upon  it  are  for  the  time  out  of  action  The 
kind  and  size,  and  weight  of  the  shaft,  would  give  notice  of  at 
least  the  maximum  capacity  of  the  ^mgine.  As  we  said  on  the 
former  appeal  of  this  cause:  "We  nny  safely  assume  that  the 
express  companies  are  agencies  organized  for  the  purpose,  at  a 
higher  price,  of  providing  greater  security  and  dispatch  in  the  de- 
livery of  freight."  And  it  would  assuredly  occur  to  any  and  ev- 
ery one  that  a  shaft  consisting  of  a  i)iecc  of  metal  weighing  not 
less  than  650  pounds,   which  under  ordinary  circumstances  could 


56  COMPENSATORY   DAMAGES 

and  would  be  shipped  with  perfect  safety  and  at  a  much  lower 
charge  by  railway,  would  not  have  been  shipped  in  this  unusual 
way  and  at  a  much  higher  price,  unless  the  call  was  urgent,  and 
some  unusual  result  would  follow  by  reason  of  delay.  The  facts, 
we  think,  were  such  as  to  give  clear  indication  that  the  shaft  was 
designed  for  present  use  in  the  mill,  and  that  some  injury  of  the 
kind  alleged  would  likely  follow  from  breach  of  the  contract  of 
shipment,  and  require  that  the  amount  of  plaintiffs'  damages  should 
be  considered  and  determined  by  the  jury  in  that  aspect  of  the 
matter.     *     *     * 

As  we  have  endeavored  to  show  in  the  case  before  us,  the  style 
and  title  of  the  plaintiff  firm,  taken  in  connection  with  the  nature 
and  description  of  the  implement  ordered,  together  with  the  un- 
usual mode  by  which  the  shipment  was  provided  for,  and  the  na- 
ture of  defendant's  business  by  which  they  undertook  for  a  greater 
wage  to  give  additional  assurance  both  of  safety  and  dispatch,  all 
give  notice  that  damages  beyond  the  ordinary  amount  might  be 
reasonably  expected  in  case  there  was  delay  in  breach  of  defend- 
ant's contract.     *     '■'■'     * 

We  are  not  inadvertent  to  the  fact  that  in  the  case  of  Hadley  v. 
Baxendale,  itself,  the  implement  was  the  crank  shaft  of  an  engine, 
for  lack  of  which  the  plaintiff's  mill  was  stopped  for  the  time. 
Without  adverting  to  the  distinctions  that  could  be  suggested  be- 
tween the  two  cases,  it  may  be  observed  that  this  great  case  is 
important  rather  as  laying  down  the  general  principles  by  which 
damages 'for  breach  of  contract  may  be  correctly  ascertained,  than 
as  a  decision  on  the  facts  of  the  particular  case.  In  evidence  of 
this,  it  may  be  noted  that,  as  a  matter  of  fact,  the  proof  showed 
that  defendant's  clerk  was  notified  that  plaintiff's  mill  would  be 
stopped  while  the  shaft  was  being  repaired.  Just  why  this  fact 
was  -ignored  in  the  opinion  of  the  judges  does  not  appear,  possibly 
because  the  notice  referred  to  was  given  the  day  before  the  shaft 
was  delivered  for  shipment — not,  it  seems,  a  very  satisfactory  ex- 
planation. While  this  does  not  at  all  impair  the  value  of  the  case 
as  making  notable  declaration  of  the  general  rules  applicable  to 
such  causes,  it  does,  perhaps,  weaken  it  to  some  extent  as  a  deci- 
sion on  any  given  state  of  facts. 

In  any  event,  we  are  of  opinion  that,  on  the  facts  presented 
here,  the  case  comes  within  the  third  rule  of  Hadley  v.  Baxendale : 
"That  where  the  special  circumstances  are  known,  or  have  been 
communicated,  to  the  person  who  breaks  the  contract,  and  where 
the  damages  complained  ot  flow  naturally  from  the  breach  of  con- 
tract, under  those  special  circumstances,  then  such  special  dam- 
ages must  be  supposed  to  have  been  contemplated  by  the  parties 
to  the  contract  and  are  recoverable."  *  *  *  Judgment  below 
reversed,  and  new  trial  awarded. -° 

20  For  former  report  of  this  case,  see  141  X.  C.  G30,  57  S.  E.  4oS  (1907). 


CONSEQUENTIAL  LOSSES  Oi 

ILLINOIS  CEXT.  R.  CO.  v.  JOHNSON  &  FLEMING. 

(Supreme  Court  of  Tennessee,  190G.     116  Tenn.  624,  94  S.  W.  600.) 

Beard,  C.  J.-^  The  defendant  in  error  had  a  contract  to  bore  a 
deep  well  at  Blytheville,  in  the  state  of  Arkansas,  and  having  a  part 
of  the  apparatus,  used  in  doing  such  work  in  Grenada,  Miss.,  on 
the  23d  of  September,  1903,  at  that  point  delivered  to  the  Illinois 
Central  Railroad  Company,  for  shipment  to  Memphis,  Tenn.,  this 
property  which  was  consigned  to  their  own  order.  On  the  2d  of 
October,  1903,  they  were  notified  by  their  agents  of  the  railroad  at 
Memphis,  of  the  arrival  of  the  car  containing  this  shipment,  and 
that  upon  the  payment  of  the  freight  the  same  was  subject  to 
removal.  Upon  receiving  this  notice,  the  defendants  in  error  paid 
the  freight  that  was  due  and  demanded  a  delivery  of  their  proper- 
ty. A  diligent  search  was  at  once  instituted  for  it,  but  it  was  not 
found  within  the  yards  of  the  company.  Repeated,  but  fruitless, 
efforts  were  made  for  several  days  in  succession  to  locate  the  car 
containing  this  property.  Believing  the  property  lost  beyond 
recovery,  the  defendants  in  error  went  into  the  open  market  and 
supplied  its  place  by  the  purchase  of  new  material  at  a  cost  of 
about  $655.  This  new  material  was  shipped  to  Blytheville,  to  be 
used  in  conjunction  with  so  much  of  the  outfit  as  was  already  there 
in  carrying  out  the  contract  which  the  defendants  had  for  the 
boring  of  the  well,  but  the  parties  with  whom  they  had  contracted 
declined  to  permit  them  to  go  on  with  the  work,  upon  the  ground 
that  the  time  had  already  passed  when  by  the  terms  of  the  con- 
tract the  well  was  to  be  completed.  The  outfit  shipped  from  Gren- 
ada was  located  by  the  railroad  company  on  or  about  the  1st  of 
November,  1903,  and  a  delivery  thereof  was  then  tendered  to  the 
defendants  in  error.  The  tender  was  declined,  and  thereupon 
the  present  suit  was  instituted  to  recover  the  damages  which  the 
shippers  alleged  they  sustained  from  the  unreasonable  detention 
of  this  property.     *     *     * 

Upon  proper  pleas  this  case  went  to  the  jury,  which  returned  a 
verdict  as  follows:  "We,  the  jury,  find  damages  for  the  plaintiff 
of  $880,  for  rental  of  equipment,  and  $166  additional  cost  of  pipe, 
etc.,  with  interest  at  6  per  cent,  from  October  2,  1903,  to  June 
19,  1905."  Both  parties  were  dissatisfied  with  this  verdict,  and 
made  motions  for  a  new  trial,  which  were  overruled  by  the  trial 
judge,  who  thereupon  entered  up  a  judgment  in  accordance  with 
its  terms.  Both  parties  have  prosecuted  the  case  to  this  court, 
and  have  assigned  errors  upon  the  action  of  the  trial  judge. 

It  is  unnecessary  to  set  out  the  several  assignments  of  error, 
as  it  is  conceded  by  the  respective  counsel  that  all,  save  one,  arc 
resolvable   into  the  single  question,  What  is  the  proper  measure 

21  I'art  of  the  oitiuion  is  omitted. 


58  COMPENSATORY   DAMAGES 

of  damages  in  this  case? — it  being  conceded  by  the  plaintiff  in 
error  that  for  its  failure  to  deliver  in  a  reasonable  time  the  de- 
fendants in  error  are  entitled  at  least  to  recover  nominal  dam- 
ages. 

It  was  insisted  in  the  lower  court,  and  the  insistence  is  repeated 
here,  that  under  the  evidence  adduced,  and  upon  the  rule  of  law 
invoked  by  the  defendants  in  error,  they  were  entitled  to  recover 
all  the  special  damages  claimed  in  their  declaration.  It  is  con- 
ceded by  their  counsel,  at  least  by  implication,  that  their  right  to 
a  recovery  of  these  damages  is  conditioned  upon  notice  having 
been  brought  home  to  the  railroad  that  a  breach  of  its  contract  for 
prompt  delivery  would  result  in  a  loss  to  them  such  as  is  here 
sued  for.  The  evidence  upon  which  they  rely  as  showing  the 
existence  of  such  notice  is  found  in  the  testimony  of  Mendenhall, 
who,  as  the  agent  of  Johnson  &  Fleming,  delivered  this  outfit  to 
the  railroad  company  at  Grenada  for  shipment.  He  testified  that, 
when  he  made  the  delivery,  he  said  to  the  agent  of  the  company 
that  the  defendants  in  error  needed  the  pipe  (constituting  a  part 
of  this  outfit)  very  badly,  that  they  were  putting  in  another  well 
at  some  place  in  Arkansas,  and  they  wanted  to  ship  this  pipe  in  a 
boat.     *     *     * 

The  rule  which  the  plaintiffs  below  invoke,  and  upon  which  they 
rely  in  this  court,  is  that  announced  in  Hadley  v.  Baxendale,  9 
Ex.  341.  This  rule  has  been  so  frequently  quoted  and  applied  in 
the  opinions  of  this  court  that  it  is  unnecessary  to  set  it  out  lit- 
erally here.  It  is  sufficient  to  say  that  under  this  rule  a  party 
who  sues  for  a  breach  of  contract  is  entitled  to  recover  damages 
(which  result  from  that  breach  according  to  the  usual  course  of 
things,  or  such  as  may  be  reasonably  supposed  to  have  been  in 
the  contemplation  of  both  parties  at  the  time  the  contract  was 
made  as  the  probable  breach  of  it.  Under  the  latter  branch  of  the 
rule  it  has  been  universally  held  that  in  order  to  recover  special 
damages,  such  as  are  claimed  by  the  defendants  in  error  in  this 
case,  the  party  against  whom  recovery  is  sought  must  have  had 
such  notice  as  would  give  him  to  understand  that  a  breach  of  the 
contract  would  probably  result  to  the  other  party  in  these  special 
damages.  In  Machine  Company  v.  Compress  Company,  105  Tenn. 
187,  58  S.  W.  270,  where  this  rule  was  enforced,  it  was  insisted  by 
the  plaintiff  in  error,  against  whom  it  was  applied,  that  granting 
the  authority  of  the  rule,  yet  that  was  not  a  proper  case  for  its  ap- 
plication, because  the  plaintiff  in  error  was  not  sufficiently  put  on 
notice  of  the  extraordinary  damages  it  might  incur  from  a  breach 
of  the  contract.  To  this  the  court  made  reply:  "No  case  holds, 
in  order  to  put  this  rule  in  operation,  that  the  party  invokmg  it 
must  have  said  to  the  other  party  at  the  moment  of  making  the 
contract  he  would  claim  these  damages  for  a  breach,  but  it  may  be 
conceded  the  knowledge  must  be  brought  home  to  the  party  sought 


CONSEQUEXTIAL  LOSSES  59 

to  be  charg-ed  under  such  circumstances,  that  he  must  know  that 
the  person  he  contracts  with  naturally  believes  that  he  accepts  the 
contract  with  a  special  condition  attached,  *  *  *  or,  as  is  said 
by  Mr.  Sedgewick,  'notice  must  be  more  than  knowledge  on  the 
defendant's  part  of  the  special  circumstances.  It  must  be  of  such 
a  nature  that  the  contract  was,  to  some  extent,  based  upon  the 
special  circumstances.' "     *     *     * 

In  view  of  the  rule  and  of  the  many  illustrations  of  it  to  be 
found  in  the  various  cases  which  we  have  had  occasion  to  examine, 
we  are  satisfied  that  it  cannot  be  said  that  it  was  within  the  con- 
templation of  these  parties  at  the  time  of  the  delivery  of  this  out- 
fit for  shipment  at  Grenada  that  a  breach  of  the  contract  of  prompt 
delivery  would  visit  upon  the  carrier  the  heavy  special  damages 
which  are  claimed  in  this  lawsuit.  If  the  witness  Mendenhall  is 
correct  when  he  undertakes  to  give  the  precise  or  exact  statement 
which  he  made  to  the  agent  of  the  railroad  when  this  outfit  was 
shipped — that  this  was  needed  very  badly — then,  as  a  matter  of 
course,  such  statement  gave  no  notice  whatever  to  the  carrier  that 
there  was  a  time  contract  made  by  Johnson  &  Fleming  for  the 
boring  of  a  well  at  Blytheville,  or  any  other  contract  which  would 
be  disappointed  by  a  failure  of  prompt  delivery  of  this  material. 
But,  referring  to  the  testimony  of  the  witness  in  another  place, 
where  he  says  he  told  the  agent  of  the  railroad  that  the  parties 
were  needing  the  pipe  very  badly,  that  they  were  putting  in  an- 
other well  some  place  in  Arkansas,  no  more,  do  we  think,  was  the 
carrier  put  on  notice.  By  this  statement  the  carrier  was  not  made 
to  understand  that  these  consignees,  Johnson  &  Fleming,  had  a 
contract  for  the  boring  of  a  well  in  Arkansas  which  would  be  for- 
feited in  the  event  of  a  failure  to  promptly  deliver.  In  fact,  the 
railroad  was  not  given  to  understand  by  this  statement  that  these 
parties  were  boring  a  well  for  other  persons  than  themselves.  Up- 
on such  a  loose  and  indefinite  statement  made  to  the  carrier,  it 
would  seem,  upon  all  the  authorities,  that  for  the  breach  of  the 
contract  upon  his  part  the  shipper  would  be  debarred  from  a  re- 
covery of  special  damages,  and  would  be  compelled  to  content  him- 
self with  such  as  would  naturally  flow  from  a  breach.  But  it  is 
insisted  that  whatever  may  be  the  defect  as  to  notice  at  the  time 
of  delivery,  yet  the  railroad  authorities  were  notified  distinctly  at 
Memphis,  while  the  search  was  being  made  for  this  lost  outfit, 
that  these  parties  did  have  a  time  contract  for  the  boring  of  a  well 
An  Arkansas,  and  that  this  material  was  essential  to  the  doing  of 
the  work,  and  that  the  delay  in  its  delivery  would  likely  result  in 
the  cancellation  of  the  contract  and  the  heavy  damage  for  which 
they  now  seek  a  recovery.  We  think  the  law  is  otherwise.  Notice 
to  the  carrier,  after  goods  have  been  shipped,  of  circumstances 
which  render  si)ccial  damages  a  probable  consequence  of  delay, 
docs  not  affect  the  original  contract  so  as  to  render  the  carrier  lia- 


60  COMPENSATORY  DAMAGES 

ble  for  such  damages,  although  the  subsequent  delay  is  unrea- 
sonable. Bradley  v.  Chicago,  etc.,  R.  R.  Co.,  94  Wis.  44,  68  N.. 
W.  410;  Missouri,  etc.,  R.  Co.  v.  Belcher,  89  Tex.  428,  35  S.  W. 
6;  Hooks  Smelting  Co.  v.  Planters'  Compress  Co.,  72  Ark.  275, 
79  S.  W.  1052.     *     *     * 

But  it  is  said  by  the  same  counsel  that  the  nature  of  this  ship- 
ment was  of  itself  equivalent  to  notice.  We  are  unable  to  see  how 
the  mere  delivery  of  iron  piping,  etc.,  would  have  suggested  in  the 
remotest  degree  to  the  agent  of  the  railroad  the  existence  of  a 
contract  for  the  boring  of  a  well.  *  *  *  The  judgment  of  the 
lower  court  is  reversed  and  the  cause  is  remanded.^^ 


PATTERSON  v.  ILLINOIS  CENT.  R.  CO, 

(Court  of  Appeals  of  Kentucky,  1906.     123  Ky.  783,  97  S.  W.  426.) 

HoBSON,  C.  J.  Appellant  Patterson,  on  November  1,  1904,  caused 
to  be  delivered  to  the  Illinois  Central  Railroad  Company  at  Helena, 
Ark.,  a  car  load  of  cotton  seed  meal  and  hulls  consigned  to  him  at 
Hodgenville,  Ky.  The  car  load  was  not  delivered  at  Hodgenville 
until  the  24th  of  November,  and  he  filed  this  suit  to  recover  dam- 
ages. He  alleged  in  his  petition  that  a  reasonable  time  for  the 
delivery  was  not  more  than  6  days,  or  not  later  than  November 
7th;  that  on  or  about  November  4th,  and  at  divers  other  times 
before  the  car  load  of  provender  was  finally  delivered,  he  called 
at  the  depot  of  the  defendant  at  Hodgenville  to  receive  it,  and, 
learning  that  it  had  not  arrived,  he  notified  the  defendant  that  the 
car  load  of  cotton  seed  meal  and  hulls  was  to  be  used  by  him  in 
feeding  a  large  number  of  cattle  which  he  then  had  on  hand  and 
was  feeding  on  cotton  seed  meal  and  hulls;  that  his  supply  of  such 
feed  was  almost  exhausted ;  that  he  could  not  supply  himself  else- 
where, and  his  cattle  could  not  be  changed  to  other  feed  without 
great  loss  and  he  would  be  greatly  damaged  by  further  delay  in 
the  delivery  of  the  feed;  that  the  defendant  upon  receiving  this 
notice  undertook  to  trace  the  car  load  of  feed  and  have  it  delivered 
to  him  in  a  reasonable  time  thereafter;  that  a  reasonable  time 
after  the  notice  was  given  was  not  more  than  6  days,  and  the 
freight  should  have  been  traced  and  delivered  not  later  than  No- 
vember 13th,  but  that  by  gross  negligence  in  tracing  and  delivering 
the  car  it  was  not  delivered  until  11  days  later,  whereby  he  was 
deprived  of  the  proper  feed  for  his  cattle  for  a  period  of  11  days; 
that  thereby  he  sustained  great  loss  in  the  weight  of  his  cattle  and 

2 2 Accord:  Towles  v.  Atlantic  Coast  Line  R.  Co.,  83  S.  C.  501,  65  S.  E. 
638  (1909);  Tillinghast  Styles  Co.  v.  Providence  Cotton  Mills,  143  N.  C.  2G8, 
55  S.  E.  621  (1906);  Crutcber  v.  Choctaw,  S.  &  G.  R.  Co.,  74  Ark.  358,  85  S. 
W.  770  (1905). 


CONSEQUENTIAL  LOSSES 


61 


in  extra  work  and  labor  in  attempting  to  care  for  them  and  secure 
proper  feed  for  them  during  this  time,  amounting  in  all  to  the  sum 
of  $220,  for  which  he  prayed  judgment.  The  circuit  court  sus- 
tained a  demurrer  to  his  petition,  and  he  appeals. 

The  general  rule  is  that,  where  a  contract  has  been  broken,  the 
■damages  which  may  be  recovered  for  the  breach  are  such  as  may 
reasonably  be  supposed  to  have  been  in  contemplation  of  both  par- 
ties at  the  time  they  made  the  contract  as  the  probable  result  of 
the  breach  of  it.  It  will  be  observed  that  the  damages  which  the 
plaintiff  sought  to  recover  are  wholly  special  damages,  growing 
out  of  the  fact  that  he  was  feeding  a  lot  of  cattle  on  cotton  seed 
meal  and  hulls,  that  the  cattle  would  not  eat  other  feed  without 
loss,  and  that  the  delay  in  getting  the  cotton  seed  meal  entailed 
upon  him  extra  labor,  expense,  and  loss  in  his  cattle.  This  spe- 
cial loss  was  due  to  the  peculiar  circumstances  of  the  plaintifif,  and 
the  rule  is  that,  unless  such  special  circumstances  are  brought 
"home  to  the  other  contracting  party  at  the  time  the  contract  is 
made,  there  can  be  no  recovery  of  such  damages  because  they 
cannot  reasonably  be  supposed  to  have  been  in  contemplation  of 
both  parties  at  the  time  they  made  the  contract. 

Appellant's  counsel  concedes  the  general  rule  to  be  as  stated, 
but  it  is  insisted  that  after  he  gave  notice  on  November  4th  of  the 
peculiar  circumstances  in  v/hich  he  was  placed,  and  the  defendant 
then  agreed  to  trace  the  stuff  and  deliver  it  as  soon  as  it  could,  it 
became  liable  for  the  special  damages  sustained  after  a  reasonable 
time  for  the  delivery,  counted  from  the  date  of  that  notice.  But 
it  is  not  averred  that  any  new  contract  was  made  between  the  par- 
ties on  November  4th.  No  new  consideration  is  averred,  and, 
from  the  allegations  of  the  petition,  it  cannot  be  inferred  that  a 
-new  contract  was  made  then.  If  one  party  could  by  a  subsequent 
notice  make  the  other  party  liable  for  such  special  damages,  then 
the  rights  of  the  parties  would  not  be  determined  by  the  contract 
between  them  or  by  their  situation  at  that  time,  but  by  the  act  of 
one  of  the  parties  alone.  The  rule  that  the  notice  should  be  given 
at  the  time  the  contract  is  entered  into  rests  upon  the  ground  that 
the  person  to  whom  the  notice  is  given  may  have  an  opportunity 
to  protect  himself  by  the  contract  which  he  makes  or  by  special 
precautions  to  avoid  loss.  A  notice  given  afterwards  by  one  par- 
ty would  afford  the  other  party  no  such  opportunity  for  self-pro- 
tection. Accordingly,  it  is  held  that  a  notice  to  the  carrier  subse- 
quent to  the  contract  and  after  the  goods  have  been  shipped  will 
not  make  him  liable  for  special  damages  in  cases  of  this  sort.  M., 
K.  &  T.  Ry.  Co.  V.  Belcher,  89  Tex.  ^28,  35  S.  W.  6;  Crutcher  v. 
Choctaw,  etc.,  R.  R.  Co.,  74  Ark.  358,  85  S.  W.  770;  Bradley  v. 
C,  M.  &  St.  P.  R.  R.  Co.,  94  Wis.  44,  68  N.  W.  410,  and  cases  cited. 
There  was  no  allegation  of  a  depreciation,  or  of  any  injury  to 
the  property  by  the  delay.     The  recovery  was  sought  solely  upon 


62  COMPENSATORY   DAMAGES 

the  special  damages  growing  out  of  the  loss  in  the  cattle,  and,  this 
not  being  recoverable,  the  circuit  court  properly  sustained  the 
demurrer  to  the  petition.     Judgment  affirmed.-^ 


III.  Avoidable  Consequences 


LAWRENCE  et  al.  v.  PORTER  et  al. 

(Circuit  Court  of  Appeals  of  United  States,  1894.     63  Fed.  62,  11  C.  C.  A.  27, 

26  L.  R.  A.  167.) 

Before  Taft  and  Lurton,  JJ. 

LuRTON,  J.^^  *  *  *  This  is  an  action  for  breach  of  a  con- 
tract of  sale  brought  by  the  buyers  against  the  sellers  for  failure 
to  deliver  a  large  quantity  of  lumber  according  to  the  terms  of 
the  agreement.  The  lumber  was  to  be  delivered  by  the  defend- 
ants at  their  mill,  on  vessels  to  be  furnished  by  the  plaintiffs,  dur- 
ing the  shipping  season  of  1890.  As  each  cargo  was  received,  the 
buyer  was  to  give  acceptances,  payable  in  90  days.  After  the  de- 
livery of  one  cargo,  the  defendants  refused,  for  no  sufficient  rea- 
son, to  deliver  the  remainder  upon  the  terms  of  the  bargain,  but 
offered  to  supply  the  lumber  needed  to  complete  the  bill  at  a  re- 
duction of  50  cents  on  each  1,000  feet,  for  cash  on  delivery  over 
the  rail  of  plaintiffs'  vessels  and  at  the  time  when  delivery  was 
required  by  the  broken  agreement.  The  buyers  stood  upon  their 
contract,  and  demanded  delivery  upon  the  credit  therein  stip- 
ulated, and  refused  to  take  the  lumber  offered  by  the  delinquent 
sellers  on  any  other  terms  than  those  contained  in  the  agreement. 
There  was  evidence  tending  to  show  that  the  quantity  and  quality 
of  lumber  contracted  for,  and  of  the  dimensions  designated,  could 
not  be  procured  at  the  place  of  delivery  from  others  than  the  de- 
fendants, or  at  any  other  available  market  in  time  for  shipment 
according  to  the  terms  of  the  contract;  that  the  lumber  was  in- 
tended for  resale  at  Tonawanda,  N.  Y. ;  that  defendants  were  so 
informed ;  and  that  the  market  value  of  such  lumber  at  Tona- 
wanda, after  deducting  freight  and  hauling,  was  considerably  above 
the  contract  price.     *     *     * 

The  ground  upon  which  the  defendants  refused  to  carry  out  the 
sale  was  ostensibly  their  unwillingness  to  extend  to  the  plaintiffs 

2 3 As  to  tlie  time  when  notice  must  be  given  see,  also,  Illinois  Cent.  R.  Co. 
V.  Johnson  &  Fleming,  ante.  p.  57. 

24  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  30. 

25  Part  of  the  opinion  is  omitted. 


AVOIDABLE    CONSEQUENCES  63 

the  credit  of  90  days  provided  for  in  the  agreement  of  sale.     They 
have  not  endeavored  to  show  that  there  were  any  circumstances 
which   justified   this  breach  of  the  agreement.     Credit  is  often  a 
material  element  in  a  contract  of  sale,  whereby  the  buyer  is  en- 
abled to  operate  upon  the  capital  of  the  seller.     Credit  extended 
without  interest  is,  in  efit'ect,  a  sale  at  the  stipulated  price  less  the 
interest  for  the  period  of  credit.     The  damage  for  a  breach  of  con- 
tract to  pay  money  at  a  particular  date  is  the  lawful  rate  of  in- 
terest for  the  period  of  default,  unless  some  other  penalty  is  im- 
posed by  the  agreement.     So  it  would  seem  that  if  the  buyer,  in- 
order  to  supply  himself  with  the  articles  which  the  seller  was  ob- 
ligated to  sell,  is  compelled  to  buy  from  another,  and  to  pay  cash, 
one  element  of  recovery  for  the  breach  would  be  interest  upon  his 
purchase  for  the  period  of  credit.     It  is  the  well-settled  duty  of 
the  buyer,  when  the  seller  refuses  to  deliver  the  goods  contracted 
for,  to  do  nothing  to  aggravate  his  injury.     Indeed,  he  must  do 
all  that  he  reasonably  can  to  mitigate  the  loss.     If  the  buyer  could 
have  supplied  himself  with  goods  of  like  kind,  at  the  place  of  de- 
livery  or  other   available   market,   at   the   time   the   contract   was 
broken,  and  neglected  to  do  so,  whereby  he  suffered  special  dam- 
ages by  reason  of  the  breach,  he  will  not  be  suffered  to  recompense 
himself  for  such  special  damage,  for  the  reason  that  to  that  extent 
he    has    needlessly   aggravated   the    loss.     The   contention    of   the 
plaintiffs  is  that  they  could  not  supply  themselves  at  the  time  the 
contract  was  broken  with  lumber  of  the  qualities  and  sizes  men- 
tioned in  their  contract  either  at  the  place  of  delivery  or  at  any 
other  available  market;    that  they  were  not  required  to  buy  from 
the  defendants,  who  were  already  in  default ;   that  to  have  bought 
from  them  would  operate  both  to  encourage  breaches  of  contracts, 
and  would  have  been  a  waiver  of  all  other  right  of  recovery  for 
the  breach  of  their  agreement ;    that  to  have  accepted  the  proposal 
of  the  defendants  to  supply  them   for  cash  at  the  reduced  price 
would   simply  have  been   to  substitute  one  contract  for  another, 
thereby  enabling  defendants  to  escape  all  liability  for  a  deliberate 
and  indefensible  violation   of  the  bargain.     They  therefore  insist 
that  the  measure  of  damage  was  the  difference  between  the  con- 
tract price  and  the  market  value  at  Tonawanda,  N.  Y.,  less  freights 
to  that  point;    the  evidence  showing  that  the  lumber  was  bought 
for  resale  at  Tonawanda,   and  that  defendants  were   informed  of 
that  purpose. 

For  a  breach  of  contract  of  sale,  the  law  imposes  no  damages 
by  way  of  punishment.  The  innocent  party  is  simply  entitled  to 
recover  his  real  loss.  If  the  market  value  is  less  than  the  contract 
price,  the  buyer  has  sustained  no  loss.  This  is  axiomatic,  and 
needs  no  citation  of  authority.  If  the  plaintiffs  could  have  bought 
at  East  Jordan,  or  at  any  other  convenient  and  available  market,  at 
the  time  of  the  breach,  lumber  of  like  kinds,  at  the  same  price  or  a 


64  COMPENSATORY  DAMAGES 

less  price,  it  would  be  clear  that  they  would  have  sustained  no  gen- 
eral damages.  If  they  refused  to  avail  themselves  of  such  opportu- 
nity, and  thereby  sustained  special  and  unusual  loss,  by  reason  of 
not  having  lumber  of  the  kinds  called  for  by  the  contract,  or  by  be- 
ing deprived  of  a  profit  resulting  from  a  resale  at  Tonawanda,  they 
could  not  recover  such  special  damage,  for  such  damage  might 
have  been  avoided  by  replacing  the  undelivered  lumber  by  other 
of  like  kinds.  The  fact  that  they  could  only  buy  from  the  defend- 
ants does  not  afifect  the  duty  of  plaintiffs  to  minimize  their  loss 
as  far  as  they  reasonably  could.  The  offer  to  sell  for  cash  at  a 
reduced  price  more  than  equalized  the  interest  for  90  days,  which 
was  the  value  of  credit.  There  seems  to  be  no  insurmountable 
objection  in  thus  permitting  a  delinquent  contractor  to  minimize 
his  loss.  The  obligation  on  the  buyer  to  mitigate  his  loss,  by  rea- 
son of  the  seller's  refusal  to  carry  out  such  a  sale,  is  not  relaxed 
because  the  delinquent  seller  affords  the  only  opportunity  for  such 
reduction  of  the  buyer's  damage.  Warren  v.  Stoddart,  105  U.  S. 
224,  26  L.  Ed.  1117;  Deere  v.  Lewis,  51  111.  254.     *     *     * 

The  opinion  in  Warren  v.  Stoddart  rests  upon  the  theory  that 
the  buyer  does  not  surrender  or  yield  any  right  of  action  he  may 
have  for  the  breach  of  contract.  It  rests  wholly  upon  the  duty  of 
mitigating  the  loss  by  replacing  the  goods  by  others,  if  they  are 
obtainable  by  reasonable  exertion.  If  this  duty  be  such  as  to  re- 
quire him  to  buy  from  the  delinquent  seller,  if  the  article  can  be 
obtained  only  from  him,  or  because  he  offers  it  cheaper  than  it 
can  be  obtained  from  others,  such  a  purchase  from  the  seller  is 
not  the  abandonment  of  the  original  contract  by  the  substitution  of 
another,  nor  would  the  purchase  operate  to  the  seller's  advantage, 
save  in  so  far  as  the  damage  resulting  from  his  bad  faith  was 
thereby  reduced.  If  the  seller  offers  to  sell  for  cash  at  a  reduced 
price,  or  to  sell  for  a  less  price  than  the  market  price,  though  in 
excess  of  the  contract  price,  with  the  condition  that  it  should  op- 
erate as  a  waiver  of  the  original  contract,  or  of  any  right  of  action 
for  its  breach,  then  the  buyer  would  not  be  obligated  to  treat  with 
the  seller,  nor  would  the  seller's  offer,  if  rejected,  operate  as  a  re- 
duction of  damages.     *     *     * 

The  cases  of  Havemeyer  v.  Cunningham,  35  Barb.  (N.  Y.)  515, 
and  Manufacturing  Co.  v.  Randall,  62  Iowa,  244,  17  N.  W.  507, 
have  been  cited  as  sustaining  a  different  result.  The  first  case 
rested  upon  a  state  of  facts  very  unlike  those  here  involved.  The 
other  seems  to  have  gone  off  upon  the  apprehension  that,  if  the' 
buyer  supplied  himself  by  a  purchase  from  the  delinquent  seller, 
he  thereby  abandoned  his  contract,  and  substituted  a  new  agree- 
ment in  place  of  the  broken  bargain.  That  apprehension  seems 
unjustified.  But,  however  that  may  be,  the  case  of  Warren  v. 
Stoddart  is  controlling.  The  offer  after  the  breach  by  the  de- 
fendants to  sell  the  lumber  necessary  to  complete  the  contract  was 


AVOIDABLE    CONSEQUENCES  65 

not  coupled  with  any  condition  operating  as  an  abandonment  of 
the  contract,  nor  as  a  waiver  of  any  right  of  action  for  damages 
for  the  breach.     *     *     * 


ILLINOIS  CENT.  R.  CO.  v.  COBB,  CHRISTY  &  CO. 

(Supreme  Court  of  Illinois,  1872.     64  111.  128. 

Cobb,  Christy  &  Co.  during  the  winter  of  1864-65  were  engaged 
in  furnishing  corn  at  Cairo  for  the  use  of  the  army  under  a  con- 
tract with  the  government.  They  had  made  large  purchases  of 
corn  along  the  line  of  the  Illinois  Central  Railroad  Company 
through  one  Fallis,  who  drew  on  them  for  the  cost  of  the  corn  as 
soon  as  he  shipped  it,  at  the  same  time  forwarding  the  bill  of 
lading.  This  action  is  brought  to  recover  damages  by  reason  of 
the  failure  of  the  railroad  company  to  deliver  such  corn  in  a  rea- 
sonable time  at  Cairo,  whereby  the  plaintififs  lost  the  opportunity 
of  delivering  the  same  under  their  contract. 

Lawrence,  C.  J.-^  *  *  ^  *  It  is  also  urged  that  the  plaintiffs 
should  have  gone  into  the  market  at  Cairo  and  have  bought  corn 
to  fill  their  contract,  and  that,  not  having  done  so,  they  ca.:  only 
recover  the  market  price.  However  this  might  be,  if  they  had 
not  already  invested  their  money  in  the  corn  in  controversy,  we 
cannot  so  hold  in  the  present  case.  It  would  be  very  unreason- 
able to  require  one,  who  has  bought  and  paid  for  an  article,  to  have 
the  money  in  his  pocket  with  which  to  buy  a  second,  in  case  of  non- 
delivery of  the  first.  This  demand  comes  with  an  ill  grace  from 
a  party  by  whose  fault  there  has  been  a  failure  of  delivery.     *     *     * 


CHICAGO  CITY  RY.  CO.  v.  SAXBY. 

(Supreme  Court  of  Illinois,  1904.     213  111.  274,  72  N.  E.  755,  08  L.  R.  A.  104, 
104  Am.  St.  Rep.  218.) 

This  was  an  action  on  the  case,  brought  by  Mary  Saxby  against 
the  Chicago  City  Railway  Company  for  damages  for  personal  in- 
juries. The  jury  returned  a  verdict  in  favor  of  plaintiff  for  $16,- 
(XX),  and  on  her  remitting  $6,000  of  that  amount  a  new  trial  was 
denied  and  judgment  entered  for  $10,000.  This  judgment  having 
been  affirmed  by  the  Appellate  Court  for  the  First  District,  de- 
fendant appeals. 

Hand,  J.  =^«  *  *  *  On  the  evening  of  August  16,  1899,  ap- 
I)cllee  was  a  passenger  upon  one  of  appellant's  cars  going  south 

20  Part  of  the  opinion  is  omitted  and  the  staUunont  of  facts  is  rewritten. 
Cooi.EY  DA^f. — 5 


66  COMPENSATORY   DAMAGES 

Upon  Indiana  avenue,  in  the  city  of  Chicago.  The  evidence  intro- 
duced on  her  behalf  tended  to  show :  That  as  the  car  approached 
Forty-Fifth  street  she  signaled  the  conductor  to  stop  the  car  at 
that  street.  That  the  car  stopped  at  the  intersection  of  Indiana  av- 
enue and  Forty-Fifth  street.  That  she  started  to  leave  the  car, 
but,  before  she  had  time  to  alight  upon  the  ground,  and  while  she 
stood  upon  the  running  board  upon  the  west  side  of  the  car,  the 
car  was  suddenly  started  without  warning  to  her,  and  she  was 
violently  thrown  from  the  car  upon  the  street,  where  she  struck 
upon  her  left  side  and  was  injured.  At  the  time  of  the  accident 
the  appellee  was  60  years  of  age,  and  was  in  good  health.  From 
the  time  of  the  injury  to  the  date  of  the  trial,  which  occurred  more 
than  two  years  after  the  accident,  she  had  left  her  room  but  once, 
and  at  the  time  of  thq  trial  was  unable  to  sit  up  but  a  portion  of 
the  time  or  to  walk.  That  the  injury  was  to  her  left  leg.  That 
the  neck  of  the  femur  bone  of  that  leg  was  fractured,  and  tuber- 
culosis had  developed  in  the  left  knee,  and  the  knee  joint  of  that 
leg  had  become  ankylosed. 

The  main  contention  of  the  appellant  is  that  the  diseased  con- 
dition of  the  knee  was  caused  by  the  leg  being  improperly  treated 
by  the  physicians  employed  by  the  appellee,  by  placing  thereon 
splints  and  plaster  casts,  and  attaching  to  the  foot  pulleys  and 
weights,  and  that  tuberculosis,  which,  it  is  claimed,  was  organic 
with  her,  by  reason  of  such  imperfect  treatment  was  developed  in 
the  knee;  and  it  is  urged  that  by  reason  of  those  facts  the  diseased 
condition  of  the  knee  was  not  the  natural  and  ordinary  conse- 
quence of  the  injury  received  by  appellee  at  the  time  she  fell  upon 
the  street,  and  that  she  ought  not  to  be  permitted  to  recover  dam- 
ages from  the  appellant  for  the  conditions  which  were  shown  to 
exist  in  the  knee.  The  appellee,  immediately  after  the  injury,  was 
carried  to  her  apartment  and  was  treated  by  Drs.  Freund  and  Far- 
num,  and  Drs.  Fenger  and  Andrews  were  called  in  consultation — 
Dr.  Freund  was  called  within  a  few  minutes  after  the  accident — 
all  of  whom  were  physicians  practicing  their  profession  in  the  city 
of  Chicago.  She  was  also  cared  for  by  a  trained  nurse  during  the 
first  18  months  succeeding  her  injury,  and  at  the  time  of  the  trial 
had  in  her  employ  a  young  woman  who  had  devoted  her  entire 
time  to  her  care  since  the  trained  nurse  left  her  employ.  Drs. 
Halstead  and  Findley,  also  physicians  in  practice  in  the  city  of 
Chicago,  were  called  as  experts,  and  approved  the  treatment  ap- 
plied to  the  appellee  by  her  attending  physicians. 

It  was  the  duty  of  the  appellee  to  use  reasonable  care  to  effect 
a  speedy  and  complete  cure  of  the  injury  which  she  sustained  by 
being  thrown  upon  the  street  from  appellant's  car,  and,  to  that  end, 
she  was  required  to  exercise  reasonable  care  to  employ  physicians 
of  ordinary  skill  and  experience  to  treat  her,  and  other  means  to 
effect  a  cure  of  her  injuries.     She  was  not,  however,  required  to 


AVOIDABLE    CONSEQUENCES  67 

employ  the  highest  medical  skill  which  might  be  found.  All  the 
law  required  was  that  she  exercise  such  prudence  as  men  and  wo- 
men of  ordinary  judgment,  under  like  circumstances,  would  exer- 
cise in  the  choice  of  physicians  and  the  means  to  be  used  to  effect 
a  recovery.  She  was  not  an  insurer,  bound  to  act  at  her  peril ; 
and  if  she  exercised  reasonable  care  in  selecting  her  physicians, 
and  in  the  employ  of  other  means  for  her  recovery,  if  her  physi- 
cians made  a  mistake  in  the  treatment  applied  by  them  to  her,  or 
the  means  employed  failed  to  effect  a  cure,  then  she  may  recover 
for  the  entire  injury  which  she  has  sustained,  as  the  law,  if  the 
injured  person  uses  ordinary  care  in  selecting  a  physician,  and  in 
the  employment  of  other  means  to  effect  a  cure,  regards  an  injury 
resulting  from  the  mistake  of  a  physician,  or  from  a  failure  of  the 
means  employed  to  effect  a  cure,  as  a  part  of  the  immediate  and 
direct  damages  which  naturally  flow  from  the  injury.  *  *  * 
Judgment  affirmed. 


ELLIS  V.  HILTON. 

(Supreme  Court  of  Michigan,  1889.     78  Mich.  150,  4.3  N.  W.  1048,  6  L.  R.  A. 
454,  18  Am.  St.  Rep.  438.) 

Long,  J.-^  This  is  an  action  to  recover  damages  against  the 
defendant  for  negligently  placing  a  stake  in  a  public  street  in 
Traverse  City,  which  plaintiff's  horse  ran  against,  and  was  injured. 
It  was  conceded  on  the  trial  by  counsel  for  defendant  that  the 
horse  of  plaintiff  was  so  injured  that  it  was  entirely  worthless. 
Plaintiff  claimed  damages,  not  only  for  the  full  value  of  the  horse, 
but  also  for  what  he  expended  in  attempting  to  effect  a  cure,  and 
on  the  trial  his  counsel  stated  to  the  court  that  plaintiff  was  en- 
titled to  recover  a  reasonable  expense  in  trying  to  cure  the  horse 
before  it  was  decided  that  she  was  actually  worthless.  The  court 
ruled,  however,  that  the  damages  could  not  exceed  the  value  of 
the  animal.  A  claim  is  made  by  the  declaration  for  moneys  ex- 
pended in  trying  to  effect  a  cure  of  the  horse  after  the  injury. 
Upon  the  trial  the  plaintiff  testified  that  he  put  the  horse,  after 
the  injury,  into  the  hands  of  a  veterinary,  and  paid  him  $35  for 
cure  and  treatment.  On  his  cross-examination,  he  also  testified 
that  the  veterinary  said  "there  was  hopes  of  curing  her,  if  the 
muscles  were  not  too  badly  bruised.  He  didn't  say  he  could  cure 
her.    He  thought  there  was  a  chance  that  he  might.'' 

Dr.  Dc  Cow,  the  veterinary,  was  called,  and  testified,  as  to  the 
injury,  that  the  stake  entered  the  breast  of  the  horse,  on  the  left 
side,  about  six  inches;  that  the  muscles  were  bruised,  and  the  left 
leg  perfectly  helpless.  He  got  the  wound  healed,  but  on  account 
of  the  severe  bruise  of  the  muscles  the  leg  became  paralyzed  and 

28  Part  of  the  opinion  is  omitted. 


68  .  COMPENSATORY  DAMAGES 

useless.  On  being  asked  whether  he  thought  she  could  be  helped 
when  he  first  saw  her,  he  stated  that  he  did  not  know  but  she 
might;  that  she  might  be  helped,  and  kept  for  breeding  purposes, 
and  be  of  some  value. 

It  is  evident  from  the  testimony  that  the  plaintifif  acted  in  good 
faith  in  attempting  the  cure,  and  under  the  belief  that  the  mare 
could  be  helped,  and  be  of  some  value.  The  court  below,  however, 
seems  to  have  based  its  ruling  that  no  greater  damages  could  be 
recovered  than  the  value  of  the  animal,  and  that  these  moneys  ex- 
pended in  attempting  a  cure  could  not  be  recovered,  upon  the 
ground  that  the  defendant  was  not  consulted  in  relation  to  the 
matter  of  the  attempted  cure.  Whatever  damages  the  plaintiff  sus- 
tained were  occasioned  by  the  negligent  conduct  of  the  defendant, 
and  recovery  in  such  cases  is  always  permitted  for  such  amount 
as  shall  compensate  for  the  actual  loss.  If  the  horse  had  been 
killed  outright  the  only  loss  would  have  been  its  actual  value. 
The  horse  was  seriously  injured;  but  the  plaintiff,  acting  in  good 
faith,  and  in  the  belief  that  she  might  be  helped  and  made  of  some 
value,  expended  this  $35  in  care  and  medical  treatment.  He  is  the 
loser  of  the  actual  value  of  the  horse,  and  what  he  in  good  faith 
thus  expended.  He  is  permitted  to  recover  the  value,  but  cut  off 
from  what  he  has  paid  out.     This  is  not  compensation. 

Counsel  for  defendant  contends  that  such  damages  cannot  ex- 
ceed the  actual  value  of  the  property  lost,  because  the  loss  or  de- 
struction is  total.  There  may  be  cases  holding  to  this  rule;  but 
it  seems  to  me  the  rule  is  well  stated,  and  based  upon  good  reason, 
in  Watson  v.  Bridge,  14  Me.  201,  31  Am.  Dec.  49,  in  which  the 
court  says:  "Plaintiff  is  entitled  to  a  fair  indemnity  for  his  loss. 
He  has  lost  the  value  of  his  horse,  and  also  what  he  has  expended  in 
endeavoring  to  cure  him.  The  jury  having  allowed  this  part  of  his 
claim,  it  must  be  understood  that  it  was  an  expense  prudently  in- 
curred, in  the  reasonable  expectation  that  it  would  prove  beneficial. 
It  was  incurred,  not  to  aggravate,  but  to  lessen  the  amount  for 
which  the  defendants  might  be  held  liable.  Had  it  proved  success- 
ful, they  would  have  had  the  benefit  of  it.  As  it  turned  out  other- 
wise, it  is  but  just,  in  our  judgment,  that  they  should  sustain 
the  loss."  In  Murphy  v.  McGraw,  74  Mich.  318,  41  N.  W.  917, 
it  appeared  on  the  trial  that  the  horse  was  worthless  at  the  time 
of  purchase  by  reason  of  a  disease  called  "eczema.''  The  court 
charged  the  jury  that  if  the  plaintiff  was  led  by  defendant  to  keep 
on  trying  to  cure  the  horse  the  expense  thereof  would  be  charge- 
able to  the  defendant,  as  would  also  be  the  case  if  there  were  any 
circumstances,  in  the  judgment  of  the  jury,  which  rendered  it  rea- 
sonable that  he  should  keep  on  trying  as  long  as  he  did  to  effect 
the  cure.  The  plaintiff  recovered  for  such  expense  and  on  the  hear- 
ing here  the  charge  of  the  trial  court  was  held  correct. 

It  is  a  question,  under  the  circumstances,  for  the  jury  to  deter- 


AVOIDABLE    CONSEQUENCES 


G9 


mine  whether  the  plaintiff  acted  in  good  faith,  and  upon  a  reason- 
able belief  that  the  horse  could  be  cured,  or  made  of  some  value, 
if  properly  taken  care  of;  and  the  trial  court  was  in  error  in  with- 
drawing that  part  of  the  case  from  them.  Such  damages,  of  course, 
must  always  be  confined  within  reasonable  bounds,  and  no  one 
would  be  justified,  under  any  circumstances,  in  expending  more 
than  the  animal  was  worth  in  attempting  a  cure.  *  *  *  Judg- 
ment reversed,  and  new  trial  ordered. 


WESTERN  REAL  ESTATE  TRUSTEES  v.  HUGHES. 

(Circuit  Court  of  Appeals,  Eighth  Circuit,  1009.     172  Fed.  20G, 
96  C.  C.  A.  658.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Nebraska. 

Before  Sanborn  and  Van  Devanter,  Circuit  Judges. 

Van  Devanter,  Circuit  Judge.-**  This  case  arose  out  of  the  fall- 
ing of  a  party  wall  in  Omaha,  whereby  the  buildings  of  which  it 
is  a  part  were  carried  down  and  much  damage  was  done  to  the 
stock  of  groceries  and  store  fixtures  of  the  plaintiff  below,  who 
was  occupying  one  of  the  buildings  under  a  lease.  *  *  *  The 
other  building  was  owned  by  the  defendants  below.  *  *  *  The 
plaintiff  sought  to  recover  from  the  defendants  the  amount  of  his 
loss,  and  in  his  petition  alleged  that  *  *  *  "the  collapse  of  the 
said  party  wall,  so  as  aforesaid  caused  and  brought  about  by  and 
through  the  negligence  of  the  defendants  and  of  their  agents  and 
employes,  caused  the  collapse  and  fall  of  the  *  *  *  building 
*  *  *  occupied  by  plaintiff."  In  their  answer  the  defendants 
denied  the  negligence  so  charged  against  them,  and  alleged  that 
the  plaintiff  negligently  had  contributed  to  the  falling  of  the  party 
wall  (a)  by  permitting  waste  water  from  a  large  refrigerator  in 
the  building  occupied  by  him  to  overflow  against  and  into  the 
party  wall,  whereby  its  stone  foundation  was  weakened;  (b)  by 
storing  in  such  building,  near  the  party  wall  and  above  the  part 
of  the  foundation  which  was  so  weakened,  a  large  amount  of  mer- 
chandise, the  weight  of  which  was  excessive  considering  the  con- 
dition of  the  foundation;  and  (c)  by  failing  to  remove  such  mer- 
chandise or  any  part  thereof  on  the  evening  preceding  the  falling 
of  the  party  wall,  after  discovering  the  weakened  condition  of  the 
foundation.  In  his  reply  the  plaintiff  denied  the  negligence  so 
charged  against  him,  and  a  trial  of  the  issues  resulted  in  a  verdict 
and  judgment  in  his  favor,  which  the  defendants  now  seek  to  avoid. 

;!:         *         * 

29  I'art  of  the  opinion  is  onilttotl. 


70  COMPENSATORY  DAMAGES 

Quite  apart  from  any  neglig-ent  contribution  by  the  plaintiff  to 
the  falHng  of  the  wall,  and  after  correctly  stating  that  one  whose 
property  is  endangered  through  the  negligence  of  another  is  re- 
quired to  exercise  reasonable  care  to  avoid  or  lessen  the  threatened 
injury,  and  can  then  charge  the  delinquent  with  the  labor  and  ex- 
pense properly  incident  thereto,  the  court  instructed  the  jury  that 
if  the  plaintiff'  by  the  exercise  of  reasonable  care  could  have  re- 
moved all  or  a  part  of  his  property  from  the  building  after  dis- 
covering that  the  wall  was  in  danger  of  falling,  and  he  failed  so  to 
do,  he  could  recover  only  such  of  the  damages  sustained  as  would 
not  have  been  avoided  by  so  doing.  But  the  defendants  insisted 
then,  and  still  insist,  that  if  the  plaintiff  negligently  failed  to  lessen 
his  damages  he  was  without  any  right  of  recovery;  that  is,  if  he 
was  negligent  in  failing  to  remove  a  part  of  his  property  from  the 
building  he  could  not  recover  at  all,-  although  he  reasonably  could 
not  have  avoided  the  injury  to  the  remainder  of  his  property.  The 
law  is  not  so  unreasonable.  On  the  contrary,  as  was  indicated  in 
the  instruction  given,  the  consequence  which  it  attaches  to  a  negli- 
gent failure  to  lessen  damages  is  not  the  loss  of  all  right  of  recov- 
ery, but  the  elimination  from  the  recovery  of  such  damages  as 
could  have  been  avoided  by  the  injured  party  by  the  exercise  of 
reasonable  care.  Warren  v.  Stoddart,  105  U.  S.  224,  229,  26  L.  Ed. 
1117;  Douglass  v.  Stephens,  18  Mo.  362;  Kansas  Pac.  Ry.  v.  Mihl- 
man,  17  Kan.  224,  234;  1  Sutherland  on  Damages  (3d  Ed.)  §  88; 
13  Cyc.  71  et  seq.     *     *     *     The  judgment  is  affirmed.^" 


IV.  The  Required  Certainty  of  Damages  ^* 


RICHMOND  &  D.  R.  CO.  v.  ALLISON. 

(Supreme  Court  of  Georgia,  1890.     86  Ga.  145,  12  S.  E.  352,  11  L.  R.  A.  43.) 

Allison  sued  the  railway  company  for  damages  for  personal  in- 
juries. In  his  declaration  he  set  forth  the  nature  and  eft'ect  of  the 
injuries,  and  also  alleged  that  at  the  time  he  was  injured  he  was 
a  postal  clerk,  earning  $1,150  a  year,  with  prospects  for  an  im- 
mediate promotion  to  a  salary  of  $1,300  a  year,  and  excellent  pros- 
pects for  promotion  in  his  life  beyond  the  highest  wages  paid  to 
postal  clerks,  and  that,  when  he  was  hurt,  he  was  22  years  old. 
The  jury  found  for  plaintiff  $11,250. 

30  Rehearing  denied  October  15,  1909.  For  former  report,  see  153  Fed.  560, 
82  C.  C.  A.  514  (1907). 

»i  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  31. 


THE    REQUIRED   CERTAINTY    OF    DAMAGES  71 

Simmons,  J.^-  Allison  sued  the  railroad  company  for  damages, 
and  obtained  a  verdict.  The  railroad  company  moved  for  a  new 
trial,  upon  several  grounds.  *  *  *  The  view  we  take  of  the 
case  renders  it  unnecessary  to  discuss  any  of  these  grounds  ex- 
cept the  fifth  and  the  ninth.  The  fifth  is  as  follows:  "Because 
the  court  erred  in  charging  the  jury  as  follows:  'Another  item  of 
damages  alleged  by  the  plaintiff  is  for  permanent  injuries.  *  *  * 
No  fixed  rule  exists  for  estimating  this  sort  of  damage.  The  plain- 
tiff's age,  his  habits,  his  strength,  sex,  vocation,  the  rate  of  wages 
earned  by  him  in  the  past  by  his  labor,  his  prospects  of  obtaining 
steady,  remunerative  employment  in  the  future,  prospects  of  in- 
creased earnings  in  the  future  by  additional  experience  and  skill 
acquired,  if  there  be  evidence  on  this  point,  and  that  evidence,  in 
your  opinion,  is  definite  and  tangible,  these  circumstances,  in  so 
far  as  they  may  be  illustrated  by  the  evidence,  are  all  circumstances 
proper  to  be  taken  into  accovmt.'  " 

The  plaintiff  in  error  objects  to  that  portion  of  the  charge  set 
out  which  says,  "No  fixed  rule  exists  for  estimating  this  sort  of 
damage,"  and  insists  that  a  fixed  rule  does  exist,  to-wit,  that  such 
a  sum  should  be  allowed  the  plaintiff  as  would  make  his  future 
income  the  same  as  it  would  have  been  had  he  not  been  injured, 
taking  into  consideration  the  probabilities  of  disease,  decreased 
capacity  to  labor,  and  the  duration  of  life.  It  is  insisted  that  the 
charge,  as  given,  puts  no  limit  upon  the  finding  of  the  jury;  that, 
while  it  calls  to  their  attention  elements  which  they  could  consider, 
it  does  not  restrict  them  by  the  fixation  of  a  principle  which  should 
control  their  conclusion.  This  court  has  considered  this  question 
upon  different  occasions,  and  in  several  cases  has  said  that  there 
is  no  "Procrustean  rule,"  or  fixed  rule,  in  cases  of  this  kind.  See 
Railway  Co.  v.  Freeman,  83  Ga.  586,  10  S.  E.  277.  *  *  *  The 
last  case  in  which  the  question  was  considered  was  Railway  Co. 
V.  Freeman,  supra,  where  the  exact  words  complained  of  were  ap- 
proved by  this  court. 

Upon  the  request  of  counsel  for  the  plaintiff  in  error,  we  allowed 
him  to  review  that  decision.  We  have  carefully  considered  his 
argument,  and  have  devoted  much  time  to  reading  the  text-books 
and  reports  of  cases  decided  by  other  courts,  to  ascertain  if  we 
could  find  any  authority  or  decision  holding  that  there  is  a  fixed 
rule  to  be  given  to  the  jury,  which  must  control  them  in  estimating 
the  damages  to  a  person  who  has  been  permanently  injured  by  the 
carelessness  and  negligence  of  a  railroad  company,  or  natural  per- 
son, but  we  have  been  unable  to  find  a  decision  of  any  court,  or  a 
dictum  of  any  text-writer,  holding  that  there  is  a  fixed  rule  for 
measuring  the  damages  in  such  cases;  and,  in  the  nature  of  things, 
It  is  impossible  for  a  court  lo  prescribe  any  fixed  rule,  because  it 

»2  Part  of  the  opinion  is  omitted  and  tbe  i?tatenient  of  facts  is  rewritten. 


72  COMPENSATORY   DAMAGES 

is  impossible  to  prove  such  exact  data  as  would  authorize  a  court 
to  prescribe  one.  It  is  impossible  for  any  witness  to  testify  to 
the  exact  time  that  the  injured  person  would  have  lived,  if  he  had 
not  been  injured.  It  is  impossible  to  say  whether  the  person  would 
have  remained  in  good  health  during  his  whole  life,  or  whether 
he  would  have  lost  little  or  much  time  by  sickness  or  idleness  or 
the  loss  of  an  opportunity  to  labor.  It  is  impossible  to  say  whether 
he  would  have  continued  to  earn  the  same  amount  of  money  during 
his  whole  life;  whether  he  would  have  earned  more,  and  how  much 
more,  or  less,  and  how  much  less ;  whether  he  would  have  re- 
mained in  the  same  occupation,  or  would  have  abandoned  that,  and 
pursued  another  more  lucrative,,  or  less  so.  Unless  these  and 
other  facts  which  might  be  enumerated  could  be  shown  the  jury, 
we  do  not  see  how  a  fixed  rule  to  measure  the  damages  for  a  per- 
manent injury  could  be  prescribed  to  the  jury. 

It  may  be  said,  however,  that  the  life-tables  put  in  evidence 
would  show  a  man's  expectancy  of  life,  and  that  the  amount  he 
was  earning  at  the  time  he  was  injured  would  be  a  sufficient  basis 
upon  which  to  prescribe  such  a  rule;  but  we  do  not  think  that 
this  would  in  all  cases  be  fair,  either  to  the  plaintiff  or  to  the  rail- 
road company.  If  the  plaintiff  were  a  young  man  of  character  and 
capacity  and  industry,  and  had  chosen  his  occupation,  and  com- 
menced its  pursuit,  his  yearly  income  at  first  might  be  small,  but, 
in  a  few  years,  he  might  be  able  to  increase  it  very  largely ;  yet, 
under  the  rule  contended  for,  he  would  be  confined  during  his  life 
to  the  small  income  he  was  making  at  the  commencement.  On  the 
other  hand,  if  the  plaintiff  were  an  aged  or  a  middle-aged  person, 
making  a  large  yearly  income,  it  would  be  unfair  to  the  railroad 
company  to  take  that  income  and  his  expectancy  of  life  as  the  sole 
basis  to  determine  the  amount  of  his  recovery ;  because  our  expe- 
rience shows  that  a  man  in  declining  years  has  not  ordinarily  the 
same  capacity  to  labor  and  earn  money  as  a  young  man.  It  is 
then  that  sickness,  inability,  and  indisposition  to  labor  come  upon 
him  more  and  more  each  year,  as  he  grows  older.  These  and  like 
facts  should  then  be  taken  into  consideration  by  the  jury  in  behalf 
of  the  railroad  company.  None  of  these  things  can  be  proved  with 
such  exactness  as  would  authorize  a  court  to  prescribe  a  fixed 
rule.     *     *     * 

We  therefore  think  that  it  is  better  for  both  parties  to  let  the 
jury  look  at  these  things  as  a  whole,  in  the  light  of  common  sense 
and  their  own  experience,  and  let  them  make  such  a  compensation 
in  their  verdict  as  would  be  reasonable  and  just  to  both  parties,, 
not  giving  to  the  plaintiff  a  large  sum  with  the  purpose  of  enrich- 
ing him,  but  compensating  him  for  the  loss  of  money  which  he 
would  probably  earn  had  he  not  been  injured,  and  thereby  pre- 
vented by  the  negligence  of  the  defendant.  These  remarks,  of 
course,  apply  only  to  the  measure  of  damages  for  the  permanent 


THE    REQUIRED    CERTAINTY    OF    DAMAGES  73 

injury.  It  is  not  contended  that  any  fixed  rule  can  be  prescribed 
as  a  measure  of  damages  for  pain  and  suffering.  We  therefore 
reaffirm   the   ruling  in   Railroad   Co.   v.   Freeman,  supra.     *     *     * 

The  ninth  ground  complains  that  the  court  erred  in  admitting 
the  following  evidence,  over  the  objection  of  counsel  for  the  de- 
fendant, to-wit:  "Question.  How  soon  after  his  injury  [referring 
to  Mr.  Allison]  were  there  any  vacancies  to  which  promotions 
could  have  taken  place?  Answer.  Vacancies  were  shortly  after- 
wards ;  say  certainly  in  the  course  of  the  next  three  to  six  months, 
I  think,  after  Allison  was  hurt.  According  to  Mr.  Allison's  stand- 
ing, and  the  classification  wdiich  I  give,  his  prospects  for  promotion 
to  one  of  these  places  was  good.''  The  defendant  objected  to  this 
testimony,  and  all  other  evidence  of  the  witness,  tending  to  show 
prospects  of  promotion,  as  being  simply  the  opinion  of  the  witness, 
and  showing  a  possibility  too  remote  to  be  the  basis  of  considera- 
tion by  the  jury  in  finding  damages. 

We  think  this  exception  is  well  taken  and  that  the  court  erred 
in  allowing  the  testimony  complained  of  to  go  to  the  jury.  The 
testimony  of  this  witness  shows,  in  substance,  that  he  was  the 
assistant  superintendent  of  the  railway  mail  service  of  the  fourth 
division  ;  that  Allison  w^as  a  postal  clerk  under  him,  and  that  he 
had  special  supervision  of  Allison's  record  and  work ;  that  the  next 
class  above  Allison  in  the  line  of  promotion  at  the  time  he  was 
injured  was  "class  5,"  and  that  the  salary  in  that  class  was  $1,300 
a  year;  that  Allison  was  receiving,  when  injured,  $1,150;  that 
Allison's  standing  in  regard  to  the  basis  of  promotion  was  "first- 
class ;''  that  there  was  no  vacancy  in  the  class  above  Allison  at 
the  time  he  was  injured,  but  two  vacancies  occurred  in  the  course 
of  from  three  to  six  months  thereafter;  that  there  were  three  men 
of  Allison's  class,  including  Allison,  and  that  the  other  two  stood 
as  well  as  he  did,  and  both  were  older  than  Allison.  One  had  been 
in  the  service  longer  and  the  other  a  shorter  time  than  Allison. 
Political  considerations  enter  somewhat  into  the  appointment  of 
clerks.  The  promoting  power  is  at  Washington;  the  office  here 
is  the  recommending  power.  A  vacancy  in  the  class  above  Allison 
might  be  filled  sometimes  from  other  routes,  and  men  taken  from 
another  route,  and  put  in,  who  occupy,  say,  a  second  rank.  It  is 
in  the  power  of  the  department  under  the  rules  to  do  that.  There 
is  no  certainty  at  all,  when  there  is  a  vacancy  in  a  position  of 
chief  clerk  (the  clerk  in  charge),  that  one  of  a  lower  grade  on  the 
same  route  will  go  up;  no  more  than  in  any  other  business.  It 
is  not  guarantied. 

We  think  this  evidence  shows  that  Allison's  promotion  was  too 
uncertain,  and  the  possibility  of  an  increase  of  his  salary  from 
$1,150  to  $1,300  too  remote,  to  go  to  the  jury,  and  for  them  to 
base  a  verdict  thereon.  While  it  is  proi)er  in  cases  of  this  kind 
to  prove  the  age,   habits,   health,  occupation,   expectation   of   life, 


74  COMPENSATORY   DAMAGES 

ability  to  labor,  and  probable  increase  or  diminution  of  that  ability 
with  lapse  of  time,  the  rate  of  wages,  etc.,  and  then  leave  it  to 
the  jury  to  assess  the  damages,  we  think  it  improper  to  allow 
proof  of  a  particular  possibility,  or  even  probability,  of  an  increase 
of  wages  by  appointment  to  a  higher  public  office,  especially  where, 
as  in  this  case,  the  appointment  is  somewhat  controlled  by  political 
reasons.  *  *  *  To  allow  the  jury  to  assess  damages  in  behalf 
of  the  plaintiff,  on  the  basis  of  a  large  income  arising  from  a  public 
office,  which  he  has  never  received,  and  which  is  merely  in  ex- 
pectancy, and  might  never  be  received,  or,  if  received  at  all,  might 
come  to  him  at  some  remote  and  uncertain  period,  would  be  wrong, 
and  unjust  to  the  defendant.     *     *     * 

It  will  be  observed  that  the  testimony  in  this  case  shows  that 
there  were  two  others  in  the  same  class  with  Allison,  equally  com- 
petent and  efficient  as  he  was,  and  it  is  by  no  means  certain  that 
Allison  would  have  been  preferred  to  each  of  them,  in  case"  of 
vacancy,  and  promoted  above  them.  So  it  could  not  be  said  that 
he  was  in  the  direct  line  of  promotion.  *  *  *  This  testimony 
being  illegal,  and  having  been  objected  to,  and  it  being  very  prob- 
able, from  the  amount  of  the  verdict,  that  the  jury  based  their 
calculation  upon  the  increased  salary  which  Allison  would  have 
received  if  he  had  been  promoted,  we  think  it  damaged  the  de- 
fendant, and  we  grant  a  new  trial  upon  this  ground. 
Judgment  reversed. 


*     * 


V.  Same — Profits  or  Gains  Prevented  ^' 


SHERMAN  CENTER  TOWN  CO.  v.  LEONARD. 

(Supreme  Court  of  Kansas,  1891.     46  Kan.  354,  26  Pac.  717, 
26  Am.  St.  Rep.  101.) 

Action  by  Thomas  P.  Leonard  against  the  Sherman  Center  Town 
Company  for  damages  for  breach  of  contract.  The  defendant  com- 
pany, desiring  to  increase  the  influence  and  population  of  Sherman 
Center  so  as  to  make  it  the  county  seat,  agreed  with  Leonard  to 
move  his  hotel  from  Itasca  to  Sherman  Center  and  to  convey  cer- 
tain lots  to  him  in  return  for  his  removal  to  that  town.  The  plain- 
tiff complains  that  defendant  failed  to  move  the  hotel;  that  Sher- 
man Center  had  become  a  flourishing  town,  where  the  hotel  busi- 
ness would  have  been  profitable ;  that  he  was  now  without  busi- 
ness  as   Itasca   had   become   depopulated.     Over  the  objection  of 

83  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  32. 


PROFITS   OR   GAINS    PREVENTED  75 

the  defendant,  plaintiff  was  allowed  to  tesify  that  the  profits  would 
have  been  $150  a  month  and  that  the  total  damage  sustained  was 
from  $1,200  to  $1,500,  besides  the  cost  of  moving  the  hotel.  There 
was  judgment  for  plaintiff  for  $600. 

Johnston,  J.^*  *  *  *  fi^^  prospective  profits  that  he  lost  by 
the  breach  of  the  contract  are  too  remote,  uncertain,  and  specu- 
lative to  be  recoverable.  Who  can  tell  what  the  future  gains  of 
the  hotel  business  would  have  been  in  Sherman  Center,  if  he  had 
moved  there?  His  past  profits  in  Itasca  were  not  shown,  and  there 
is  no  testimony  of  the  gains  of  others  established  in  the  same 
business  at  Sherman  Center.  How,  then,  does  Leonard  know  that 
the  profits  would  have  been  $150  per  month?  The  gains  to  be 
derived  from  the  business  depended  upon  many  contingencies  other 
than  the  mere  removal  of  his  hotel  to  that  place.  The  growth  of 
the  town;  the  location  of  the  county-seat  there  or  at  another  town 
near  by;  the  immigration  and  travel;  the  competition  in  the  hotel 
business;  the  price  of  provisions  and  the  cost  of  help;  the  general 
reputation  of  the  house;  and  the  popularity  of  the  landlord  with 
the  traveling  public  and  the  people  of  that  community — are  sug- 
gested as  some  of  the  considerations  that  would  affect  the  antici- 
pated benefits.  Where  the  breach  on  a  contract  results  in  the 
loss  of  definite  profits,  which  are  ascertainable,  and  were  within 
the  contemplation  of  the  contracting  parties,  they  may  generally 
be  recovered;  but  the  prospective  profits  do  not  furnish  the  cor- 
rect measure  of  damages  in  the  present  case.  Aside  from  the  re- 
mote, conjectural,  and  speculative  character  of  the  anticipated  bene- 
fits, it  cannot  be  said  that  the  loss  of  them  is  the  direct  and  un- 
avoidable consequence  of  the  breach.  The  plaintiff  could  not  sit 
idle  an  indefinite  length  of  time  and  safely  count  on  the  recovery 
of  $150  per  month  as  damages.  If  there  was  a  breach  of  the  con- 
tract, it  was  his  duty,  upon  learning  of  it,  to  at  once  remove  the 
building,  or  employ  others  to  do  so,  and  charge  the  cost  of  the 
removal  to  the  town  company.  The  law  requires  that  the  injured 
party  shall  do  whatever  he  reasonably  can  and  improve  all  rea- 
sonable opportunities  to  lessen  the  injury.  From  the  testimony 
it  appears  that  Leonard  could  have  procured  others  to  move  the 
hotel ;  and  in  such  a  case  the  ordinary  measure  of  damages  is  the 
cost  of  removal,  and  the  reasonable  expenses  of  avoiding  the  con- 
sequence of  defendant's  wrong.     *     *     * 

Counsel  for  plaintiff  in  error  say  that  no  more  than  the  cost  of 
removal  was  allowed  by  the  court ;  but  the  admission  of  the  ob- 
jectionable evidence  *  *  *  would  indicate  that  the  court  adopted 
an  incorrect  measure  of  damages,  and  did  not  limit  the  recovery 
to  the  expense  of  the  removal.  *  *  *  por  the  error  of  the 
court  in  admitting  testimony  the  judgment  of  the  court  below  will 
be  reversed  and  cause  remanded  for  a  new  trial. 

8*  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


76  COMPENSATORY  DAMAGES 

STATES  et  al.  v.  DURKIN  et  al. 
(Supreme  Court  of  Kansas,  1902.     65  Kau.  101,  G8  Pac.  1091.) 

Action  by  James  Durkin  and  others  against  Christian  States 
and  others.  There  was  judgment  for  plaintiffs,  and  defendants 
bring  error. 

Greene,  J.^^  The  defendants  in  error  entered  into  a  partnership 
in  April,  1897,  to  engage  in  the  business  of  plumbers  and  steam  fit- 
ters in  the  city  of  Topeka.  It  was  necessary,  in  the  successful  pros- 
ecution of  such  business,  to  purchase  plumbing  goods  and  material. 
The  plaintiffs  in  error  were  at  the  time  members  of  what  is  called 
the  Kansas  Master  Plumbers'  Mutual  Benefit  Association,  which  it 
is  alleged  is  an  unlawful  combination,  organized  for  the  purpose  of 
carrying  out  restraint  in  trade  and  commerce,  so  far  as  it  relates 
to  the  plumbing  business  in  Kansas.  The  defendants  in  error 
brought  this  action  on  the  22d  day  of  July,  1897,  in  the  district 
court  of  Shawnee  county,  to  recover  damages  alleged  to  have  been 
sustained  to  their  business  by  reason  of  this  unlawful  combination 
interfering  and  preventing  them  from  purchasing  plumbing  goods 
and  material  on  the  market  at  the  generally  prevailing  prices,  and 
in  preventing  them  from  procuring  such  goods  and  material  within 
a  reasonable  time;  also  to  recover  losses  sustained  on  certain 
plumbing  contracts,  resulting  from  the  wrongful  acts  of  the  plain- 
tiffs in  error.  The  jury  found  against  plaintiff's  below  on  the 
question  of  special  damages,  but  found  that  they  had  sustained 
damages  to  their  general  business  in  the  sum  of  $300,  and  that 
the  value  of  the  services  of  their  attorneys  was  $200,  for  which 
amounts  the  court  below  rendered  judgment.  From  this  judgment 
the  plaintiffs  in  error  prosecute  this  proceeding.     *     *     * 

The  important  question  is,  does  the  evidence  sustain  the  finding 
of  the  jury  that  the  plaintiffs  were  entitled  to  recover  for  damages 
to  their  general  business?  When  such  damages  are  recoverable, 
they  are  confined  to  the  loss  of  profits.  In  this  state  the  loss  of 
profits  to  a  business  which  has  been  wrongfully  interrupted  by 
another  is  an  element  of  damage  for  which  a  recovery  may  be  had. 
But  in  all  such  cases  it  must  be  made  to  appear  that  the  business 
which  it  is  claimed  has  been  interrupted  was  an  established  one ; 
that  is,  it  had  been  successfully  conducted  for  such  a  length  of 
time,  and  had  such  a  trade  established,  that  the  profits  thereof 
are  reasonably  ascertainable.  Brown  v.  Hadley,  43  Kan.  267,  23 
Pac.  492. 

In  the  present  case  the  plaintiffs  had  only  been  in  business  a 
short  time — not  long  enough  so  that  it  can  be  said  they  had  an 
established  business.    They  had  contracted  three  jobs  of  plumbing; 

3  5  Part  of  the  opinion  is  omitted. 


PKOFITS    OR    GAIN'S    PREVENTED  77 

had  finished  two,  and  lost  money  on  both— not,  however,  because 
of  any  misconduct  or  wrongful  acts  on  the  part  of  the  defendants, 
or  either  of  them.  They  carried  no  stock  in  trade,  and  their  man- 
ner of  doing  business  was  to  secure  a  contract,  and  then  purchase 
the  material  necessary  for  its  completion.  It  is  not  shown  that 
they  had  any  means  or  capital  invested  in  the  business,  other  than 
their  tools.  '  Neither  of  them  had  prior  thereto  managed  or  car- 
ried on  a  similar  business.  Nor  is  it  shown  that  they  Avere  capable 
of  managing  this  business  so  as  to  make  it  earn  a  profit.  There 
was  little  of  that  class  of  business  being  done  at  that  time,  and 
little,  if  any,  profit  derived  therefrom.  The  plaintififs'  business 
lacked  duration,  permanency,  and  recognition.  It  was  an  adven- 
ture, as  distinguished  from  an  established  business.  Its  profits 
were  speculative  and  remote,  existing  only  in  anticipation.  The 
law,  with  all  its  vigor  and  energy  in  its  effort  to  right  wrongs  and 
award  damages  for  injuries  sustained,  may  not  therefor  enter  into 
the  domain  of  speculation  or  conjecture. 

In  view  of  the  character  and  condition  of  the  plaintiffs'  business, 
the  jury  had  not  sufficient  evidence  from  which  to  ascertain  prof- 
its. The  finding  of  damages  to  the  plaintiffs'  business  has  no 
support  in  the  evidence,  and,  since  an  attorney's  fee  can  only  fol- 
low an  award  of  actual  damages,  the  judgment  of  the  court  below 
is  reversed,  and  the  cause  remanded.     All  the  justices  concurring. 


NATIONAL  FIBRE  BOARD  CO  v.  LEWISTON 
&  A.  ELECTRIC  LIGHT  CO. 

(Supreme  Judicial  Court  of  Maine,  1901.     95  Me.  318,  49  Atl.  109.j.) 

Action  on  the  case  by  the  National  Fibre. Board  Company  against 
the  Lewiston  &  Auburn  Electric  Light  Company  to  recover  of  de- 
fendant damages  for  flowage  of  plaintiff's  wheels  and  machinery 
in  its  mill.     Case  submitted  on  report. 

Emery,  J.^*'  In  the  latter  part  of  January,  1895,  the  plaintiff 
corporation  began  the  erection  of  a  water  mill  upon  its  own  land 
and  across  a  nonnavigablc  stream,  the  Little  Androscoggin  river, 
at  Minot  corner.  At  that  time  some  three  miles  down  the  river, 
there  were  in  existence  another  water  mill  and  dam  across  the  same 
river,  which  had  been  built  in  1888,  and  were,  in  January,  1895, 
and  thereafter,  leased  and  operated  by  the  defendant  corp(M-ation. 
*     *     * 

Some  three  years  afterwards,  in  July,  1898,  the  defendant  put 
on  top  of  the  solid  part  of  its  dam,  along  its  whole  length,  flash- 

««  Tart  of  tlie  ouinioii  is  (jiiiittcd  iuid  tlio  statniiciil  of   fads   Ls  rowritteu. 


78  COMPENSATORY   DAMAGES 

boards  24  inches  high,  and  maintained  them  there  up  to  the  date 
of  the  writ,  March  14,  1899,  to  increase  its  head  of  water.  The 
plaintiff  complains  that  these  flashboards  have  caused  the  water 
to  flow  beyond  its  former  flow,  and  upon  the  plaintiff's  wheels, 
and  have  thereby  materially  lessened  their  efficiency.  This  action 
on  the  case  is  brought  to  recover  damages  for  this  increased  flow 
caused  by  the  flashboards ;  the  plaintiff  claiming  that  such  in- 
creased flow  is  beyond  the  defendant's  right.     *     *     * 

The  defendant  again  contends  that  the  net  earnings  or  profits 
alleged  to  be  lost  are, not  recoverable  because  too  uncertain  and 
speculative,  and  that  the  plaintiff  is  limited  to  the  decrease  in  the 
rental  value  of  its  mill  at  Minot's  Corner.  If  such  profits  are  un- 
certain or  speculative,  they  cannot  be  included  in  the  assessment 
of  damages.  When,  however,  one  has  erected  or  acquired  a  valuable 
plant,  with  an  established  business  connected  therewith,  yielding 
regular  profits,  and  his  plant  is  impeded  in  its  efficient  operation 
by  the  tortious  act  of  another,  so  that  his  regular  profits  are  thereby 
lessened,  he  cannot  be  made  whole  unless  he  is  reimbursed  for  the 
lost  earnings  of  his  plant.  His  whole  plant  and  his  business  com- 
bined may  earn  far  more  income  under  his  management  than  the 
mere  market  rental  value  of  some  part,  or  even  all,  of  the  plant. 
His  actual  loss  from  the  diminished  efficiency  of  his  plant,  and  the 
consequent  diminished  product,  may  be  far  more  than  the  decrease 
in  the  market  rental  value.  He  is  justly  entitled  to^the  profits 
which  his  sagacity,  skill,  and  industry  would  bring  him  in  the 
business  if  not  interfered  with.  If  he  cannot  recover  from  the 
wrongdoer  this  actual  loss  over  and  abov^e  the  decrease  in  the 
rental  value,  he  suffers  a  wrong,  to  the  great  reproach  of  the  law. 

The  law,  however,  is  not  open  to  that  reproach.  In  White  v. 
Moseley,  8  Pick.  (Mass.)  356,  the  defendant  tore  away  part  of  the 
plaintiff's  dam  upon  which  was  a  mill,  thereby  lessening  the  effi- 
ciency of  the  mill.  The  plaintiff  claimed  and  recovered  not  only 
the  cost  of  restoring  the  dam,  but  also  for  the  loss  of  profits 
through  the  interruption  of  his  business.  *  *  *  j^  Holden  v. 
Manufacturing  Co.,  53  N.  H.  552,  the  defendant  tortiously  lessened 
the  water  power  of  the  plaintiff's  cotton  mill,  thereby  diminishing 
the  efficiency  of  his  machinery.  It  was  adjudged  that  the  plain- 
tiff could  recover  for  the  consequent  diminution  of  the  net  earnings 
or  profits  of  his  mill.  In  Simmons  v.  Brown,  5  R.  I.  299,  7Z  Am. 
Dec.  79,  the  defendant,  by  raising  his  dam  tortiously,  caused  the 
water  to  flow  back  upon  the  plaintiff's  wheels  in  his  cotton  mill 
above.  The  defendant  contended,  there  as  here,  that  he  was  liable 
only  for  a  fair  and  reasonable  rent  of  the  water  power  of  which 
the  plaintiff  was  deprived.  The  court  held,  however,  that  the 
plaintiff  could  recover  for  the  loss  of  such  profits  as  he  might  have 
made  upon  the  goods  he  would  have  manufactured  but  for  the 
defendant's  act.     *     *     * 


.'ROFITS   OR   GAINS    PREVENTED  79 

We  find  no  decisions  of  our  own  court  in  conflict  with  the  above. 
In  the  cases  in  which  a  claim  to  recover  for  lost  profits  is  denied, 
it  will  be  found  that  the  profits  claimed  were  not  reasonably  cer- 
tain to  accrue,  but  were  speculative,  contingent,  or  otherwise  un- 
certain, or  merely  probable.     *     *     * 

Recurring  now  to  the  evidence  in  the  case,  we  find  that  the 
plaintiff  had  acquired  its  plant,  and  was  doing  a  business  in  con- 
nection with  it,  viz.  the  manufacture  of  leather  boards.  The  busi- 
ness appears  to  have  become  established,  regular,  and  permanent. 
Its  volume  was  such  that  the  factory  or  mill  was  running  on  full 
time, — 23  hours  a  day.  There  is  no  suggestion  of  any  falling  off 
in  the  demand  for,  or  price  of,  the  manufactured  product.  No 
breakage  of  machinery,  no  interruption  of  any  kind,  is  shown 
except  that  caused  by  the  flowage.  The  regular  daily  product  of 
three  beating  engines,  running  for  23  hours  each  day,  was  one 
ton  of  manufactured  leather  board.  There  was  a  regular  definite 
profit  upon  each  ton  manufactured.  It  seems  reasonably  certain 
that  such  production  and  consequent  earnings  or  profits  would 
have  continued  during  the  time  covered  by  the  writ;  at  least,  no 
reason  is  shown  for  apprehending  the  contrary.  So  far,  therefore, 
as  the  defendant  crippled  the  engines,  and  reduced  their  profit- 
making  power,  it  should  itself  make  up  that  profit. 

The  application  of  the  principle  of  recovery  for  lost  profits  is 
much  more  difficult  than  the  exposition  of  the  principle  itself. 
Numerous  circumstances  must  be  considered.  The  factory  did  not 
run  every  day.  The  defendant  apparently  had  the  right  to  main- 
tain flashboards  of  some  width  during  some  part  of  the  time. 
Much  of  the  time,  also,  the  ice,  the  natural  high  stage  of  the 
water,  and  other  obstructions,  may  have  more  or  less  flowed  out 
the  plaintiff's  wheels.  It  was  for  the  plaintiff  to  show  us  how 
much  of  the  flowage  in  amount,  time,  and  injury  resulted  directly 
from  the  defendant's  use  of  flashboards  in  excess  of  right. 

We  wish,  as  was  suggested  by  the  justice  presiding  at  the  trial, 
the  amount  of  damages  might  be  assessed  by  a  commission  of 
experts,  who  could  obtain  full  data,  and  make  the  proper  discrim- 
ination between  the  rightful  and  wrongful  flowage.  The  task, 
however,  has  been  imposed  upon  us,  and  after  careful  considera- 
tion of  the  limited  data  laid  before  us,  our  minds  rest  upon  the 
sum  of  $800  as  the  most  that  is  justified  by  the  evidence  in  this 
case.    Judgment  for  the  plaintiff  for 


•80  COMPENSATORY   DAMAGES 


VI.  Entirety  of  Demand" 


WICHITA  &  W.  R.  CO.  V.  BEEBE  et  al. 
(Supreme  Court  of  Kansas,  ISSS.     39  Kan.  4G5,  18  Pac.  502.) 

Holt,  C.^^  This  action  was  brought  by  defendants  in  error  as 
plaintiffs,  in  Sedgwick  district  court,  to  recover  damages  to  lands 
they  had  rented,  by  an  overflow  of  water.  In  their  petition  they 
aver  that  in  the  spring  of  1885  they  were  cultivating  a  tract  of 
40  acres  off  the  south  side  of  the  S.  E.54  of  section  26,  township 
27  S.,  of  range  1  W.,  Sedgwick  county,  and  had  fully  prepared  to 
plant  corn  upon  it ;  that  the  said  defendant  railroad  company  had 
then  recently  diverted  the  water  of  a  stream  from  its  natural  water- 
course in  the  construction  of  its  roadbed,  and  discharged  it  through 
an  artificial  channel;  that  on  or  about  the  15th  of  May  of  said 
year  on  account  of  heavy  rains,  a  great  quantity  of  water  was 
discharged  through  this  newly  made  channel  upon  the  land  in  ques- 
tion ;  and  the  water,  overflowing  and  remaining  upon  the  same 
for  about  six  weeks,  prevented  the  plaintiffs  from  planting,  culti- 
vating, and  growing  corn  and  other  crops  thereon,  and  by  reason 
thereof  they  have  been  damaged  in  the  sum  of  $500.  It  appears, 
further,  that,  on  the  17th  of  August  following,  said  plaintiffs  com- 
menced an  action  against  this  defendant  to  recover  damages  caused 
by  the  water  flowing  through  the  same  channel  at  the  same  time, 
and  overflowing  60  acres  of  corn  already  planted.  This  action  was 
tried,  and  judgment  rendered  for  plaintiff's  for  $75.  The  defense 
urged,  and  properly  raised  and  supported  by  the  evidence,  was  that 
the  judgment  in  the  former  action  was  a  bar  to  this  one.  Defendant 
brings  the  case  here  for  review.  It  appears  that  the  plaintiff  had 
rented  320  acres,  half  of  said  section  26,  and  that  the  40  acres  un- 
planted,  for  which  damages  are  claimed  in  this  action,  was  a  part 
of  this  same  tract,  with  the  60  acres  which  had  been  planted,  and 
for  which  damages  had  been  claimed  and  recovered  heretofore. 
The  defendant  claims  that  the  judgment  obtained  in  the  former 
action  precluded  the  plaintiff  from  setting  up  any  other  and  differ- 
ent damages  than  those  claimed  in  that  action,  occasioned  at  the 
same  time. 

We  believe  the  law  to  be  well  settled  that  no  party  is  permitted 
to  split  his  causes  of  action  into  different  suits.  If  he  does,  and 
obtains  judgment  upon  any  part,  such  judgment  is  a  complete  bar 
to  a  recovery  upon  any  remaining  portion  thereof.  The  splitting 
up  of  claims  is  not  permitted  in  the  case  of  contracts,  and  the  same 

3  7  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  33. 
8  8  Part  of  the  opinion  is  omitted. 


PAST   AND   FUTURE    LOSSES  81 

rule  which  prevents  a  party  from  doing  so  applies  with  equal 
force  to  actions  arising  in  tort,  and  the  same  act  cannot  be  the 
foundation  for  another  suit,  although  the  items  of  damages  may  be 
diflferent.  In  this  action  the  act  complained  of  was  the  discharge  of 
the  water  upon  the  15th  day  of  May;  and  this  claim  for  damages 
might  have  been  litigated  in  the  first  action,  and  should  have  been 
set  forth  in  the  petition  therein.  If  plaintiffs  neglected  to  do  so,  they 
should  be  barred  from  further  relief.  It  was  the  same  storm,  and 
the  water  was  discharged,  through  the  same  culvert,  upon  land 
which  was  a  part  of  the  same  tract  that  plaintiffs  had  rented. 
"The  principle  is  settled  beyond  dispute  that  a  judgment  concludes 
the  right  of  parties  in  respect  to  the  cause  of  action  stated  in  the 
pleadings  in  which  it  is  rendered,  whether  the  suit  embraces  the 
whole  or  only  a  part  of  the  demand  constituting  the  cause  of  ac- 
tion. It  results  from  this  principle,  and  the  rule  is  fully  estab- 
lished, that  an  entire  claim,  ensuing  either  upon  a  contract  or  from 
a  wrong,  cannot  be  divided,  and  made  the  subject  of  several  suits; 
and,  if  several  suits  be  brought  for  the  different  parts  of  the  same 
claim,  *  *  *  judgment  upon  the  merits  in  either  will  be  avail- 
able as  a  bar  in  the  other  suits.  *  *  *  In  case  of  torts,  each 
trespass  or  conversion  or  fraud  gives  a  right' of  action,  and  but 
a  single  one,  however  numerous  the  items  of  wrong  or  damage 
may  be."  1  Herm.  Estop.  §  77 .  If  the  rule  were  otherwise,  the 
tract  might  have  been  divided  up  into  5,  10,  or  15  acre  tracts,  and 
there  might  have  been  a  series  of  vexatious  law  suits.  "It  is  for 
the  public  good  that  there  be  an  end  to  litigation."  This  view 
is  well  supported  by  authority.     *     *     * 


VII.  Time  to  Which  Compensation  May  Be  Recovered — 
Past  and  Future  Losses  ^® 

1.  Continuing  Contracts 


ROEHM  V.  HORST. 

(Supreme  Court  of  United  States,  1900.     178  U.   S.   1,  20  Sup.  Ct.  7S0, 

44  L.   Ed.  9.j3). 

On  writ  of  certiorari  to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Third  Circuit  to  review  a  decision  affirming  a  judg- 
ment for  plaintiffs  in  an  action  on  contract. 

On  August  25,   1893,  the  plaintiffs,   Paul   R.   G.   Ilorst   and   his 

30  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  ii  o4. 
CooLKY  Dam. — 0 


82  COMPENSATORY   DAMAGES 

partners,  agreed  to  sell,  and  the  defendant,  John  Roehm,  agreed 
to  purchase,  under  four  contracts,  400  bales  of  hops,  of  the  crops 
of  1896  and  1897,  to  be  delivered  in  installments  from  October, 
1896,  to  July,  1898.  The  first  contract,  for  100  bales,  covered  the 
period  from  October,  1896,  to  March,  1897.  On  October  6,  1896, 
plaintififs  made  the  first  shipment  of  20  bales  under  the  contract. 
Defendant  refused  to  receive  the  hops,  and  on  October  24,  1896, 
repudiated  the  contracts.  The  plaintiffs  made  no  further  eflforts 
to  make  delivery,  and  brought  action  for  damages  in  January  1897, 
in  the  United  States  Circuit  Court  for  the  Eastern  District  of 
Pennsylvania.  There  was  judgment  for  plaintiffs  (84  Fed.  565), 
which  was  affirmed  by  the  United  States  Circuit  Court  of  Appeals 
for  the  Third  Circuit  (91  Fed.  345,  33  C.  C.  A.  550).  Thereupon 
defendant  applied  for  a  writ  of  certiorari,  which  was  granted. 
Fuller,  C.  J.,  delivered  the  opinion  of  the  court  i*** 
It  is  conceded  that  the  contracts  set  out  in  the  finding  of  facts 
were  four  of  ten  simultaneous  contracts,  for  100  bales  each,  cover- 
ing the  furnishings  of  1,000  bales  of  hops  during  a  period  of  five 
years,  of  which  600  bales  had  been  delivered  and  paid  for.  If  the 
transaction  could  be  treated  as  amounting  to  a  single  contract  for 
1,000  bales,  the  breach  alleged  would  have  occurred  while  the  con- 
tract was  in  the  course  of  performance ;  but  plaintififs'  declaration 
or  statement  of  demand  averred  the  execution  of  the  four  contracts, 
''two  for  the  purchase  and  sale  of  Pacific  coast  hops  of  the  crop 
of  1896,  and  two  for  the  purchase  and  sale  of  Pacific  coast  hops 
of  the  crop  of  1897,"  set  them  out  in  extenso,  and  claimed  recovery 
for  breach  thereof,  and  in  this  view  of  the  case  while  as  to  the 
first  of  the  four  contracts,  the  time  to  commence  performance  had 
arrived,  and  the  October  shipment  had  been  tendered  and  refused, 
the  breach  as  to  the  other  three  contracts  was  the  refusal  to  per- 
form before  the  time  for  performance  had  arrived. 

The  first  contract  falls  within  the  rule  that  a  contract  may  be 
broken  by  the  renunciation  of  liability  under  it  in  the  course  of 
performance  and  suit  may  be  immediately  instituted.  But  the 
other  three  contracts  involve  the  question  whether,  where  the  con- 
tract is  renounced  before  performance  is  due,  and  the  renunciation 
goes  to  the  whole  contract,  and  is  absolute  and  unequivocal,  the 
injured  party  may  treat  the  breach  as  complete  and  bring  his  ac- 
tion at  once.  Defendant  repudiated  all  liability  for  hops  of  the 
crop  of  1896  a!nd  of  the  crop  of  1897,  and  notified  plaintiffs  that 
he  should  make  (according  to  a  letter  of  his  attorney  in  the  record 
that  he  had  made)  arrangements  to  purchase  his  stock  of  other 
imrties,  whereupon  plaintiffs  brought  suit.  The  question  is  there- 
fore presented,  in  respect  of  the  three  contracts,  whether  plaintiffs 

*o  Part  of  tlie  opinion  is  omitted  and  tlie  statement  of  facts  is  rewritten. 


PAST   AND    FUTURE    LOSSES  83 

were  entitled  to  sue  at  once  or  were  obliged  to  wait  until  the 
time  came  for  the  first  month's  delivery  under  each  of  them. 

It  is  not  disputed  that  if  one  party  to  a  contract  has  destroyed 
the  subject-matter,  or  disabled  himself  so  as  to  make  performance 
impossible,  his  conduct  is  equivalent  to  a  breach  of  the  contract, 
although  the  time  for  performance  has  not  arrived ;  and  also  that 
if  a  contract  provides  for  a  series  of  acts,  and  actual  default  is 
made  in  the  performance  of  one  of  them,  accompanied  by  a  re- 
fusal to  perform  the  rest,  the  other  party  need  not  perform,  but 
may  treat  the  refusal  as  a  breach  of  the  entire  contract,  and  re- 
cover accordingly. 

And  the  doctrine  that  there  may  be  an  anticipatory  breach  of 
an  executory  contract  by  an  absolute  refusal  to  perform  it  has 
become  the  settled  law  of  England  as  applied  to  contracts  for 
services,  for  marriage,  and  for  the  manufacture  or  sale  of  goods. 

*  ^:  * 

The  parties  to  a  contract  which  is  wholly  executory  have  a 
right  to  the  maintenance  of  the  contractual  relations  up  to  the 
time  for  performance,  as  well  as  to  a  performance  of  the  contract 
when  due.  If  it  appear  that  the  party  who  makes  an  absolute  re- 
fusal intends  thereby  to  put  an  end  to  the  contract  so  far  as  per- 
formance is  concerned,  and  that  the  other  party  must  accept 
this  position,  why  should  there  not  be  speedy  action  and  settlement 
in  regard  to  the  rights  of  the  parties?  Why  should  a  locus  po^ni- 
tentice  be  awarded  to  the  party  whose  wrongful  action  has  placed 
the  other  at  such  disadvantage?  What  reasonable  distinction  per 
se  is  there  between  liability  for  a  refusal  to  perform  future  acts  to 
be  done  under  a  contract  in  course  of  performance  and  liability  for 
a  refusal  to  perform  the  whole  contract  made  before  the  time  for 
commencement  of  performance?     *     *     * 

As  to  the  question  of  damages,  if  the  action  is  not  premature, 
the  rule  is  applicable  that  plaintiff  is  entitled  to  compensation 
based,  as  far  as  possible,  on  the  ascertainment  of  what  he  would 
have  suffered  by  the  continued  breach  of  the  other  party  down  to 
the  time  of  complete  performance,  less  any  abatement  by  reason 
of  circumstances  of  which  he  ought  reasonably  to  have  availed 
himself.  If  a  vendor  is  to  manufacture  goods,  and  during  the  pro- 
cess of  manufacture  the  contract  is  repudiated,  he  is  not  bound 
to  complete  the  manufacture,  and  estimate  his  damages  by  the 
difference  between  the  market  price  and  the  contract  price,  but 
the  measure  of  damage  is  the  difference  between  the  contract  price 
and  the  cost  of  performance.  Hinckley  v.  Pittsburgh  I'essomcr 
Steel  Co.,  121  U.  S.  264,  30  L.  Ed.  967,  7  Sup.  Ct.  875.  Even  if  in 
such  cases  the  manufacturer  actually  obtains  his  profits  before  the 
time  fixed  for  performance,  and  recovers  on  a  basis  of  cost  wliicii 
might  have  been  increased  or  diminished  by  subsequent  events, 
the   party  who   broke   the  contract   before   the   time   for   complete 


84  COMPENSATORY   DAMAGES 

performance  cannot  complain,  for  he  took  the  risk  involved  in  such 
anticipation.  If  the  vendor  has  to  buy  instead  of  to  manufacture, 
the  same  principle  prevails,  and  he  may  show  what  was  the  value 
of  the  contract  by  showing  for  what  price  he  could  have  made 
subcontracts,  just  as  the  cost  of  manufacture  in  the  case  of  a  manu- 
facturer may  be  shown.  Although  he  may  receive  his  money  ear- 
lier in  this  way,  and  may  gain,  or  lose,  by  the  estimation  of  his 
damage  in  advance  of  the  time  for  performance,  still,  as  we  have 
seen,  he  has  the  right  to  accept  the  situation  tendered  him,  and 
the  other  party  cannot  complain.     *     *     *     Judgment  affirmed. 


McMULLAN  v.  DICKINSON  CO. 

(Supreme  Court  of  Minnesota,  1895.    60  Minn.  156,  62  N.  W.  120,  27  L.  R.  A. 
409,  51  Am.  St.  Rep.  511.) 

Canty,  J.*^  On  the  25th  of  February,  1892,  the  plaintiff  entered 
into  a  written  agreement  with  the  defendant  corporation,  whereby 
it  agreed  to  employ  him  as  its  assistant  manager,  from  and  after 
that  date,  as  long  as  he  should  own  in  his  own  name  50  shares  of 
the  capital  stock  of  said  corporation,  fully  paid  up,  and  the  busi- 
ness of  said  corporation  shall  be  continued,  not  exceeding  the  term 
of  the  existence  of  said  corporation,  and  pay  him  for  such  services 
\he  sum  of  $1,500  per  annum,  payable  monthly  during  that  time, 
and  whereby  he  agreed  to  perform  said  services  during  that  time. 
He  has  ever  since  owned,  as  provided,  the  50  shares  of  said  stock, 
and  performed  said  services  ever  since  that  time  until  the  28th  of 
October,  1893,  when  he  was  discharged  and  dismissed  by  the  de- 
fendant without  cause.  He  alleges  these  facts  in  his  complaint 
in  this  action,  and  also  alleges  that  he  has  been  ever  since  he  was  so 
dismissed,  and  is  now,  ready  and  willing  to  perform  said  services 
as  so  agreed  upon,  and  that  there  is  now  due  him  the  sum  of  $125 
for  each  of  the  months  of  Alarch  and  April,  1894,  and  prays  judg- 
ment for  the  sum  of  $250.  The  defendant  in  its  answer,  for  a 
second  defense,  alleges  that  on  March  2,  1894,  plaintiff"  commenced 
a  similar  action  to  this  for  the  recovery  of  the  sum  of  $512,  for 
the  period  of  time  from  his  said  discharge  to  the  1st  of  March, 
1894,  alleging  the  same  facts  and  the  same  breach,  and  that  on 
April  16,  1894,  he  recovered  judgment  in  that  action  against  this 
defendant  for  that  sum  and  costs,  and  this  is  pleaded  in  bar  of 
the  present  action.  The  plaintiff'  demurred  to  this  defense,  and 
from  an  order  sustaining  the  demurrer  the  defendant  appeals. 

The  plaintiff  brought  each  action  for  installments  of  wages 
claimed  to  be  due,  on  the  theory  of  constructive  service.  The 
doctrine  of  constructive  service  was  first  laid  down  by  Lord  El- 

*i  Part  of  the  opinion  is  omitted. 


PAST    AND   FUTURE    LOSSES  85 

lenborongh  in  Gandell  v.  Pontigny,  4  Campb.  375,  and  this  case 
was  followed  in  England  and  this  country  for  a  long  time  (Wood, 
^last.  &  Serv.  254),  and  is  still  upheld  by  several  courts  (Isaacs  v. 
Davies,  68  Ga.   169;    Armfield  v.  Nash,  31  Miss.  361;    Strauss  v. 
IMeertief,  64  Ala.  299,  38  Am.  Rep.  8).     It  has  been  repudiated  by 
the  courts  of  England  (Goodman  v.  Pocock,  15  Adol.  &  E.  [N.  S.] 
574;    Wood,  Mast.  &  Serv.  254),  and  by  many  of  the  courts  in  this 
country  (Id.;    and  notes  to  Decamp  v.  Hewitt,  43  Am.  Dec.  204), 
as  unsound  and  inconsistent  with  itself,  as  it  assumes  that  the  dis- 
charged servant  has  since  his  discharge  remained  ready,  willing, 
and  able  to  perform  the  services  for  which  he  was  hired,   while 
sound  principles  require  him  to  seek  employment  elsewhere,  and 
thereby  mitigate  the  damages  caused  by  his  discharge.     His  rem- 
edy is  for  damages  for  breach  of  the  contract,  and  not  for  wages  for 
its  performance.     But  the  courts,  which  deny  his  right  to  recover 
wages   as   for   constructive   service,  have  denied   him   any  remedy 
except  one  for  damages,  which,  if  seemingly  more  logical  in  theory, 
is  most  absurd  in  its  practical  results.     These  courts  give  him  no 
remedy  except  the  one  which  is  given  for  the  recovery  of  loss  of 
profits  for  the  breach  of  other  contracts,  and  hold  that  the  contract 
is  entire,  even  though  the  wages  are  payable  in  installments,  and 
that  he  exhausts  his  remedy  by  an  action  for  a  part  of  such  dam- 
ages, no  matter  how  long  the  contract  would  have  run  if  it  had 
not  been  broken.     See  James  v.  Allen  Co.,  44  Ohio  St.  226,  6  N. 
E.  246,  58  Am.  Rep.  821 ;    Moody  v.  Leverich,  4  Daly  (N.  Y.)  401 : 
Colburn  v.  Woodworth,  31  Barb.   (N.  Y.)  381 ;    Booge  v.  Railroad 
Co.,  33  Mo.  212,  82  Am.  Dec.  160.     No  one  action  to  recover  all 
the  damages  for  such  a  breach  of  such  a  contract  can  furnish  any 
adequate  remedy,  or  do  anything  like  substantial  justice  between 
the   part'ies.     By  its  charter  the   life  of  this  corporation   is  thirty 
years.     If  the  action  is  commenced  immediately  after  the  breach, 
how  can  prospective  damages  be  assessed  for  this  thirty  years,  or 
for  even  one  year?     To  presume  that  the  discharged  servant  will 
not  be  able  for  a  large  part  of  that  time  to  obtain  other  employ- 
ment, and  award  him  large  damages,  might  be  grossly  unjust  to 
the  defendant.     Again,  the  servant  is  entitled  to  actual  indemnity, 
not  to  such  speculative  indemnity  as  must  necessarily  be  given  by 
awarding  him  prospective  damages.     His  contract  was  not  a  spec- 
ulative one,  and  the  law  should  not  make  it  such.     That  men  can 
and  do  find  employment  is  the  general  rule,  and  enforced  idleness 
the  exception.     It  should  not  be  presumed  in  advance  that  the  ex- 
ceptional will  occur. 

This  is  not  in  conflict  with  the  rule  that,  in  an  action  for  retro- 
spective damages  for  such  a  breach,  the  burden  is  on  the  defendant 
to  show  that  the  discharged  servant  could  have  found  employment. 
In  that  case,  as  in  others,  reasonable  diligence  will  be  presumed. 
When  it  appears  that  he  has  not  found  cniploynient  or  been  eiu- 


86  COMPENSATORY  DAMAGES 

ployed,  there  is  no  presumption  tliat  it  was  his  fault,  and,  under 
such  circumstances,  it  will  be  presumed  that  the  exceptional  has 
happened.  But  to  presume  that  the  exceptional  will  happen  is 
very  different.  In  an  action  for  such  a  breach  of  a  contract  for 
services,  prospective  damages  beyond  the  day  of  trial  are  too  con- 
tingent and  uncertain,  and  cannot  be  assessed.  2  Suth.  Dam.  471 ; 
Gordon  v.  Brewster,  7  Wis.  355 ;  Fowler  &  Proutt  v.  Armour,  24 
Ala.  194;  Wright  v.  Falkner,  Z7  Ala.  274;  Colburn  v.  Woodworth, 
31  Barb.  (N.  Y.)  385.  Then,  if  the  discharged  servant  can  have 
but  one  action,  it  is  necessary  for  him  to  starve  and  wait  as  long 
as  possible  before  commencing  it.  If  he  waits  longer  than  six 
years  after  the  breach,  the  statute  of  limitations  will  have  run, 
and  he  will  lose  his  whole  claim.  If  he  brings  his  action  within 
the  six  years,  he  will  lose  his  claim  for  the  balance  of  the  time 
after  the  day  of  trial.  Under  this  rule,  the  measure  of  damages  for 
the  breach  of  a  thirty  year  contract  is  no  greater  than  for  the 
breach  of  a  six  or  seven  year  contract.  Such  a  remedy  is  a  traves- 
ty on  justice.  Although  the  servant  has  stipulated  for  a  weekly, 
monthly,  or  quarterly  income,  it  assumes  that  he  can  live  for  j^ears 
without  any  income,  after  which  time  he  will  cease  to  live  or  need 
income. 

The  fallacy  lies  in  assuming  that,  on  the  breach  of  the  contract, 
loss  of  wages  is  analogous  to  loss  of  profits,  and  that  the  same 
rule  of  damages  applies,  while  in  fact  the  cases  are  wholly  dis- 
similar, and  there  is  scarcely  a  parallel  between  them.  In  the  one 
case  the  liability  is  absolute;  in  the  other  it  is  contingent.  If 
the  rule  of  damages  were  the  same,  then,  in  the  case  of  the  breach 
of  the  contract  for  service,  the  discharged  servant  should  be  al- 
lowed only  the  amount  which  the  stipulated  wages  exceed  the 
market  value  of  the  service  to  be  performed,  without  regard  to 
whether  he  could  obtain  other  employment  or  not.  If  the  stipu- 
lated wages  did  not  exceed  the  market  value  of  the  service,  he 
would  be  entitled  to  only  nominal  damages,  and  in  no  case  could 
his  failure  to  find  other  employment  vary  the  measure  of  damages. 
Clearly,  this  is  not  the  rule.  In  the  one  case  the  liability  is  a  con- 
tingent liability  for  loss  of  wages ;  in  the  other  case  it  is  an  abso- 
lute liability  for  loss  of  profits.  Such  contingent  liability  cannot 
be  ascertained  in  advance  of  the  happening  of  the  contingency, 
and  that  is  why  prospective  damages  for  loss  of  wages  are  too  con- 
tingent and  are  too  speculative  and  uncertain  to  be  allowed,  while 
retrospective  damages  for  such  loss  are  of  the  most  certain  char- 
acter. On  the  other  hand,  if  damages  for  loss  of  profits  are  too 
speculative  and  uncertain  to  be  allowed,  they  are  equally  so, 
whether  prospective  or  retrospective.  "The  pecuniary  advantages 
which  would  have  been  realized  but  for  the  defendant's  act  must  be 
ascertained  without  the  aid  which  their  actual  existence  would  af- 
ford.    The  plaintiff's  right  to  recover  for  such  a  loss  depends  on 


PAST   AND   FUTURE    LOSSES  87 

liis  proving  with  sufficient  certaint}^  that  such  advantages  would 
have  resulted,  and,  therefore,  that  the  act  complained  of  prevented 
them."     1  Suth.  Dam.  (1st  Ed.)  107. 

It  is  our  opinion  that  the  servant  wrongfully  discharged  is  en- 
titled to  indemnify  for  loss  of  wages,  and  for  the  full  measure  of 
this  indemnity  the  master  is  clearly  liable.  This  liability  accrues 
by  installments  on  successive  contingencies.  Each  contingency 
consists  in  the  failure  of  the  servant  without  his  fault  to  earn,  dur- 
ing the  installment  period  named  in  the  contract,  the  amount  of 
wages  which  he  would  have  earned  if  the  contract  had  been  per- 
formed, and  the  master  is  liable  for  the  deficiency.  This  rule  of 
damages  is  not  consistent  with  the  doctrine  of  constructive  serv- 
ice, but  it  is  the  rule  which  has  usually  been  applied  by  the  courts 
which  adopted  that  doctrine.  Under  that  doctrine  the  master 
should  be  held  liable  to  the  discharged  servant  for  wages  as  if 
earned,  while  in  fact  he  is  held  only  for  indemnity  for  loss  of  wages. 
The  fiction  of  constructive  service  is  false  and  illogical,  but  the 
measure  of  damages  given  under  that  fiction  is  correct  and  logical. 
It  is  simply  a  case  of  a  wrong  reason  given  for  a  correct  rule. 
Instead  of  rejecting  the  false  reason  and  retaining  the  correct  iule. 
many  courts  have  rejected  both  the  rule  and  the  reason.  In  our 
opinion,  this  rule  of  damages  should  be  retained;  but  the  true 
ground  on  which  it  is  based  is  not  that  of  constructive  service,  but 
the  liability  of  the  master  to  indemnify  the  discharged  servant,  not 
to  pay  him  wages,  and  this  indemnity  accrues  by  installments.  The 
original  breach  is  not  total,  but  the  failure  to  pay  the  successive 
installments  constitutes  successive  breaches.  Since  the  days  of 
Lord  Ellenborough  this  class  of  cases  has  been  in  some  courts  an 
exception  to  the  rule  that  there  can  be  but  one  action  for  damages 
for  the  breach  of  a  contract,  and  there  are  strong  reasons  why  it 
should  be  an  exception. 

r.ecause  the  discharged  servant  may,  if  he  so  elects,  bring  suc- 
cessive actions  for  the  installments  of  indemnity  as  they  accrue, 
it  does  not  follow  that  he  cannot  elect  to  consider  the  breach  total, 
and  bring  one  action  for  all  his  damages,  and  recover  all  of  the 
same  accruing  up  to  the  time  of  trial.  *  *  *  The  order  ap- 
pealed from  should  be  affirmed.     So  ordered. 


88  COMPKNSATOItY   DAMAGES 


2.  Continuing  Torts 


KANSAS  PAC.  RY.  v.  MIHLMAN. 

(Supreme  Court  of  Kansas,  1S76.     17  Kan.  224.) 

BREWiiR,  J.*^  Mihlman  was  the  owner  of  a  tract  of  land  in  Riley 
county.  In  December,  1866,  he  deeded  the  right-of-way  through 
said  land  to  the  railway  company,  plaintiff  in  error,  for  its  railroad. 
Prior  to  1868  the  road  was  constructed  over  this  right-of-way. 
It  is  not  claimed  that  the  road  was  not  built  on  the  tract  deeded, 
nor  that  it  was  unskillfully  built.  The  road  crossed  at  right  angles 
a  ravine  which  seems  to  have  drained  quite  an  extent  of  territory, 
and  through  which  ran  after  a  heavy  rain  a  large  volume  of  sur- 
face-water. It  does  not  appear  to  have  been  technically  a  water- 
course, or  that  anything  but  surface-water  ran  through  it.  At  or 
near  this  ravine  the  company  built  two  culverts.  Leading  to  and 
from  these  culverts,  it,  according  to  IMihlman's  testimony,  dug  two 
or  three  ditches,  partly  on  the  right-of-way  and  partly  on  Mihl- 
man's  land.  In  1872  and  1873,  from  these  ditches,  or  in  conse- 
quence of  the  culverts  being  unable  to  carry  oft'  all  the  surface- 
water,  the  land  of  Mihlman  was  flooded,  and  his  crops  destroyed ; 
and  for  this  damage  he  brought  this  action.  It  does  not  appear 
that  the  company  entered  upon  Mihlman's  land,  or  did  any  work 
thereon,  at  any  time  within  five  years  prior  to  the  commencement 
of  this  action.     *     *     * 

The  first  matter  to  which  our  attention  is  called,  and  which  we 
shall  notice,  is  that  of  the  statute  of  limitations.  Actions  of  tres- 
pass upon  real  property  are  barred  in  two  years.  Gen.  St.  633,  § 
18,  cl.  3.  If  the  cause  of  action  dates  from  the  time  the  defendant 
entered  upon  the  plaintiff's  land  and  dug  the  ditches,  and  was  sim- 
ply for  the  trespass,  it  was  barred;  if  from  the  time  the  injury  to 
Mihlman's  crops  occurred,  it  would  probably  not  be.  So  far  as 
the  company  had  acted,  its  action  was  finished  when  it  had  dug 
the  ditches.  (We  are  now  considering  the  question  with  reference 
solely  to  what  it  did  off  its  own  land,  and  upon  that  of  Mihlman.) 
It  had  invaded  Mihlman's  rights ;  it  had  committed  a  trespass  on 
his  lands.  It  was  then  responsible  in  an  action  for  the  injury  it 
had  done  by  that  trespass.  Such  action  might  have  been  brought 
immediately,  and  in  such  action  could  have  been  recovered  all 
damages  done  to  Mihlman  by  the  trespass,  and  which  might  have 
included  the  cost  of  restoring  the  ground  to  the  condition  it  was 
before  the  digging  of  the  ditches.     What  new  act  has  the  company 

*2  Part  of  the  opinion  is  omitted. 


PAST   AND    FUTURE    LOSSES  89 

since  done?  What  wrong-  has  it  done  to  IVIihhnan's  property? 
Nothing.  Its  hands  have  been  still.  It  has  made  no  new  invasion 
of  his  rights.  Suppose  an  action  had  been  brought,  and  damages 
recovered,  for  the  trespass  immediately  after  it  occurred:  what 
new  act  of  the  company  could  now  be  alleged  as  the  basis  of  re- 
covery? True,  the  trespass  has  now  resulted  in  greater  loss  than 
was  then  foreseen  or  estimated  in  assessment  of  damages ;  but  an 
increase  in  the  damages  resulting  adds  no  new  cause  of  action. 
*     *     * 

There  are  cases,  it  is  true,  in  which  the  cause  of  action  is  based 
upon  the  actual  occurrence  of  damage,  and  dates  therefrom,  and 
not  upon  or  from  the  prior  act  which  resulted  in  the  damage ;  but 
these  are  all  cases  in  which  the  prior  act  is  itself  lawful,  and  fur- 
nishes no  cause  of  action,  or  where  it  is  considered  as  a  continu- 
ing act;  as,  where  one  excavates  on  his  own  land,  and  thereby 
withdraws  the  lateral  support  to  his  neighbor's  soil  and  buildings, 
the  act  is  itself  lawful,  and  only  becomes  the  basis  of  a  cause  of 
action  for  damages  when  it  actually  results  in  injury;  and  the 
cause  of  action  dates,  not  from  the  time  of  the  excavation,  but 
from  the  time  of  the  subsidence.  Bonomi  v.  Backhouse,  96  E.  C. 
L.  653.  Here  no  trespass  is  committed.  The  party  is  simply 
using  his  own  property,  and  using  it  lawfully;  and  it  is  only  when 
he  conflicts  with  the  rule  "Sic  utere  tuo  ut  alienum  non  Isedas,'' 
that  his  neighbor  has  any  cause  of  complaint.  If  after  the  excava- 
tion he  builds  on  his  own  ground  a  wall  which  continues  the  sup- 
port of  his  neighbor's  soil  and  buildings,  that  neighbor  has  no  ac- 
tion. The  excavation  therefore  is  not  the  foundation  of  the  ac- 
tion, but  the  damage  consequential  upon  the  excavation ;  and  no 
cause  of  action  exists  until  the  damage  occurs.     *     *     * 

Counsel  here  would  make  the  gist  of  the  action  the  continuance 
of  the  ditch ;  =i=  *  *  but  the  fact  is,  the  wrong  was  done  when 
the  ditch  was  dug,  and  an  omission  to  re-enter  and  fill  up  the  ditch 
was  a  breach  of  no  legal  duty.  There  are  cases  in  which  the  orig- 
inal act  is  considered  as  a  continuing  act,  and  daily  giving  rise  to 
a  new  cause  of  action.  Where  one  creates  a  nuisance,  and  per- 
mits it  to  remain,  so  long  as  it  remains  it  is  treated  as  a  continu- 
ing wrong,  and  giving  rise,  over  and  over  again,  to  causes  of  ac- 
tion. But  the  principle  upon  which  one  is  charged  as  a  continu- 
ing wrongdoer  is,  that  he  has  a  legal  right,  and  is  under  a  legal 
duty,  to  terminate  the  cause  of  the  injury.  As  to  anything  upon 
his  own  land,  a  party  has  a  right  to  control  and  remove  it,  and  if 
it  is  so  much  of  an  injury  to  his  neighbor's  rights  as  to  amount  to 
a  nuisance,  is  under  a  legal  obligation  to  do  so;  but  as  to  that 
upon  his  neighbor's  land,  he  has  no  such  right,  and  is  under  no 
such  duty.  Hence  the  distinction  between  nuisance  and  tres- 
pass.    *     *     * 


90  COMPENSATORY   DAMAGES 

It  is  true,  the  books  speak  of  such  a  thing  as  a  continuhig-  tres- 
pass. In  1  Add.  Torts,  332,  it  is  said,  that  "If  a  man  throws  a 
heap  of  stones,  or  builds  a  wall,  or  plants  posts  or  rails  on  his  neigh- 
bor's land,  and  there  leaves  them,  an  action  will  lie  against  him 
for  the  trespass,  and  the  right  to  sue  will  continue  from  day  to 
day  until  the  incumbrance  is  removed."  And  in  the  case  of 
Holmes  v.  Wilson,  Z7  E.  C.  L.  273,  10  Adol.  &  E.  503,  it  appeared 
that  the  trustees  of  a  turnpike  to  support  it  built  buttresses  on  the 
plaintiff's  land.  He  brought  an  action,  and  recovered  for  the  tres- 
pass. He  then  notified  them  to  remove  the  buttresses.  Failing 
to  do  so,  he  sued  again,  and  it  was  held  that  the  action  would  lie. 
It  seems  to  us  very  doubtful  whether  this  ruling  can  be  sustained 
upon  principle.  As  suggested  by  the  reporter,  suppose  plaintiff 
had  recovered  as  a  part  of  his  damages  in  the  first  action,  as  he 
properly  might,  the  expense  of  removing  these  buttresses,  and  this 
fact  had  appeared  in  the  second  suit:  could  the  action  have  been 
maintained?  And  what  difference,  we  ask,  does  it  make,  whether 
he  did  actually  recover  for  such  expense?  It  was  a  proper  matter 
of  damages;  it  was  a  part  of  the  amount  necessary  to  place  the 
land  as  it  was  before  the  trespass;  he  was  entitled  to  recover  it, 
if  he  proved  it;  and  if  he  failed  to  prove  it,  or  if  after  proving  it 
the  court  refused  to  allow  it,  neither  the  failure  nor  the  error  laid 
the  foundation  for  a  second  action.  And  what  right  does  the  first 
trespass  give  the  trespasser  to  re-enter  and  commit  a  second  tres- 
pass? 

True,  in  this  case,  the  plaintiff  had  requested  the  trustees  to  re- 
move the  buttresses,  and  that  might  be  considered  a  license  to 
enter,  and  a  waiver  of  the  trespass.  But  where  there  is  no  such 
request,  as  in  the  case  before  us,  how  is  it?  If  the  railway  com- 
pany had  entered  to  fill  up  the  ditches,  could  not  Mihlman  have 
maintained  his  action  for  that  as  a  trespass?  Was  he  not  at  lib- 
erty to  appropriate  the  benefit  of  the  company's  work  in  digging 
the  ditches,  and  prevent  any  person  from  interfering  therewith, 
and  recover  damages  from  any  one  that  did  interfere?  It  seems 
so  to  us,  unquestionably.  And  it  seems  that  the  rule  would  be  the 
same  in  case  of  such  a  trespass  as  suggested  in  Addison,  of  the 
building  of  a  wall,  or  the  heaping  up  of  a  pile  of  stones.  Hence 
we  doubt  the  doctrine  as  stated  by  him,  and  as  decided  in  Holmes 
V.  Wilson.  At  any  rate,  we  do  not  think  it  can  be  extended  beyond 
the  character  of  trespasses  there  named,  that  is,  those  in  which 
something  is  carried  to  and  placed  upon  the  land.  Take  this  il- 
lustration :  A.  trespasses  upon  B.'s  land,  and  digs  a  well.  And 
that  is  a  trespass  very  like  that  of  digging  a  ditch.  A.  never  en- 
ters upon  the  land  again.  The  well  is  never  filled  up,  but  is  per- 
mitted to  remain.  Twenty  years  thereafter,  in  a  wet  season,  the 
water  from  the  well  soaks  through  the  soil  into  a  cellar,  floods  it, 
and  causes  damage.     Is  A.  responsible  for  the  damage?    or  does 


PAST   AND    FDTCRE   LOSSES  91 

the  statute  bar  an  action?  Was  the  digging  of  the  well  a  single 
act,  and  a  completed  wrong?  or  does  its  existence  make  A.  a 
continuous  trespasser,  and  liable  for  every  recurring  damage? 

But  without  pursuing  the  discussion  further,  we  hold  that  in 
digging  the  ditches  on  Mihlman's  land  the  company  was  a  tres- 
passer; that  the  cause  of  action  for  that  wrong  was  then  com- 
plete, and  then  commenced  to  run;  that  the  failure  to  enter  and 
fill  up  the  ditches,  did  not  render  the  company  guilty  of  continuing 
a  nuisance,  nor  make  it  in  any  legal  sense  a  continuous  wrong- 
doer, and  that  therefore,  as  to  any  injury  resulting  therefrom,  as 
shown  in  the  record,  the  statute  of  limitations  was  a  bar.  *  *  * 
The  judgment  will  be  reversed,  and  the  case  remanded,  with  in- 
struction to  grant  a  new  trial. *^ 


BOWERS  V.  MISSISSIPPI  &  R.  R.  BOOM  CO. 

(Supreme  Court  of  Minnesota,  1899.     78  Minn.  398.  81  N.  W.  208, 
79  Am.  St.  Rep.  395.) 

Action  by  Charles  E.  Bowers  against  the  Mississippi  &  Rum 
River  Boom  Company.  Verdict  directed  for  defendant.  From 
an  order  refusing  a  new  trial,  plaintiff  appeals. 

Start,  C.  J.**  This  is  an  action  to  recover  damages  which  the 
plaintif?  claims  to  have  sustained  by  the  act  of  the  defendant  in 
placing  piling  in  the  Mississippi  river  opposite  his  farm,  whereby 
the  water  in  the  river  was  turned  from  its  natural  course,  and  car- 
ried upon  and  against  his  land,  washing  away  the  shores  thereof. 
The  answer  admitted  and  alleged  that  in  the  year  1887  the  de- 
fendant, in  the  exercise  of  its  charter  powers  as  a  corporation  en- 
gaged in  the  business  of  booming  and  driving  logs,  placed  the  pil- 
ing in  the  river  for  the  purpose  of  keeping  floating  logs  ofiE  from 
the  sand  bars  therein,  but  that  the  defendant  removed  the  piling 
in  1895.  It  further  alleged  that  on  May  4,  1895,  the  plaintiff  duly 
recovered  judgment  against  the  defendant  for  the  same  cause  of 
action  alleged  in  the  complaint  in  this  action,  and  that  such  judg- 
ment has  been  paid  and  satisfied.  The  reply  denied  that  the  judg- 
ment pleaded  as  a  bar  was  for  the  same  cause  of  action  as  that  al- 
leged in  the  complaint  herein. 

The  trial  court,  at  the  close  of  the  evidence,  directed  a  verdict 
for  the  defendant,  on  the  ground  that  the  judgment  in  the  prior 
action  was  a  bar  to  this  one.  *  *  *  The  question,  then,  for 
our  consideration,  is  whether  the  trial  court  erred  in  holding  that 
the  prior  judgment  was  a  bar  to  this  action. 

<»  See,  also,  in  coniieftion  vvitli  this  case,  National  Copner  Co.  v.  Minneso- 
ta Miiiin},'  Co.,  .07  Mich.  83,  23  N.  W.  781,  58  Am.  Uep.  333  (1885). 
**  I'art  of  tlie  opinion  is  oniiLled. 


92  COMPENSATOIIY   DAMAGES 

There  was  evidence,  as  to  this  question,  tending  to  establish 
these  facts :  The  defendant,  in  the  year  1887,  placed  the  piling  in 
the  river,  and  has  ever  since  kept  it  there.  The  effect  of  this  pil- 
ing was  and  still  is  to  turn  the  water,  ice,  and  logs  against  plain- 
tiff's land,  whereby  its  shores  were  and  are  cut  and  washed  away. 
The  plaintiff,  on  February  5,  1895,  brought  an  action  against  the 
defendant  to  recover  the  damages  sustained  by  him  by  reason  of 
such  acts  of  the  defendant,  and  recovered  a  judgment  therefor  in 
the  sum  of  $400,  which  is  the  prior  judgment  in  question.  It  has 
been  satisfied.  In  the  prior  action  prospective  damages  were  not 
claimed  nor  assessed.  *  *  *  Since  February  5,  1895,  some  four 
acres  more  of  the  plaintiff's  land  have  been  washed  away  by  reason 
of  such  piling  being  so  maintained  in  the  river,  and  this  action  is 
for  the  recovery  of  damages  therefor. 

The  plaintiff  was  bound  to  recover  in  his  first  action  all  the 
damages  which  he  was  entitled  to ;  and  if  he  was  then  entitled  to 
recover  for  all  injuries,  past,  present,  and  future,  to  his  land,  by 
reason  of  the  acts  of  the  defendant  in  placing  and  maintaining  the 
piling  in  the  river,  the  judgment  in  the  prior  action  is  a  bar  to  this 
one;  for  the  plaintiff,  if  such  were  the  case,  could  not  split  up 
his  cause  of  action,  and  recover  a  part  of  his  damages  in  the  first 
action,  and  then  bring  this  action  for  the  rest  of  them.  The  de- 
fendant claims  that  the  first  action  was  just  such  a  case,  and  that 
the  trial  court  correctly  held  the  judgment  to  be  a  bar.  The 
test,  whether  an  injury  to  real  estate  by  the  wrongful  act  of  an- 
other is  permanent  in  the  sense  of  permitting  a  recovery  of  pros- 
pective damages  therefor,  is  not  necessarily  the  character,  as  to 
permanency,  of  the  structure  or  obstruction  causing  the  injury, 
but  the  test  is  whether  the  whole  injury  results  from  the  original 
wrongful  act,  or  from  the  wrongful  continuance  of  the  state  of 
facts  produced  by  such  act.     *     *     * 

The  adjudged  cases  are  agreed  as  to  the  abstract  rule  that,  where 
the  injury  wholly  accrues  and  terminates  when  the  wrongful  act 
causing  it  is  done,  there  can  be  but  one  action  for  the  redress  of 
the  injury.  But,  where  the  injury  is  in  the  nature  of  a  continuing 
trespass  or  nuisance,  successive  actions  may  be  maintained  for 
the  recovery  of  the  damages  as  they  accrue.  In  the  application 
of  the  rule,  however,  the  authorities  are  somewhat  conflicting. 
Fortunately,  we  are  relieved  from  any  uncertainty  as  to  the  ap- 
plication of  the  rule  to  the  facts  of  this  case  by  the  decisions  of 
this  court;  for  they  conclusively  establish  the  proposition  that  the 
acts  of  the  defendant,  in  placing  and  maintaining  the  piling  in  the 
river,  whereby  the  water,  logs,  and  ice  were  driven  upon  the  shore 
of  the  plaintiff's  land,  were  in  the  nature  of  a  continuing  trespass 
or  nuisance,  and  that  successive  actions  may  be  brought  for  the 
damages  as  they  accrue.  Harrington  v.  Railroad  Co.,  17  Minn. 
215  (Gil.  188)  ;    Adams  v.  Railroad  Co.,  18  .Minn.  260  (Gil.  236)  ; 


PAST   AND    FUTURE   LOSSES  93 

Brakken  v.  Railway  Co.,  29  Minn.  41,  11  N.  W.  124;  Bryne  v. 
Railway  Co..  38  Alinn.  212,  36  N.  W.  339,  8  Am.  St.  Rep.  668; 
Adams  v.  Railroad  Co.,  39  Minn.  286,  39  N.  W.  629,  1  L.  R.  A.  493, 
12  Am.  St.  Rep.  644;  Lamm  v.  Railway  Co.,  45  ]\Iinn.  71,  47  N. 
W.  455,  10  L.  R.  A.  268. 

The  facts  in  these  cases,  except  that  of  Bryne  v.  Raihvay  Co., 
are  similar.  In  each  case  the  railway  company  built  and  main- 
tained its  roadbed,  upon  which  to  operate  its  cars,  in  a  public  street 
or  highway,  upon  which  the  plaintiff's  land  abutted,  and  it  was  held 
that  the  acts  of  the  defendant  were  a  continuing-  trespass  or  nui- 
sance, for  which  successive  actions  could  be  brought.  The  ques- 
tion is  tersely  and  clearly  discussed,  and  directly  decided,  in  the 
last  case  cited.  The  satisfaction  of  the  judgment  in  the  first  ac- 
tion brought  by  the  plaintiff'  to  recover  the  damages  already  ac- 
crued was  not  a  purchase  of  the  right  to  continue  the  trespass  or 
nuisance,  for  it  was  not  the  equivalent  of  a  judgment  in  condem- 
nation proceedings.     Lamm  v.  Railway  Co.,  supra. 

The  defendant  seeks  to  distinguish  its  case  from  the  cases  in 
this  court,  which  we  have  cited,  on  the  ground  that  it  w^as  author- 
ized by  law  to  place  and  maintain  the  piling  in  the  river  to  facili- 
tate the  floating  and  driving  of  logs  therein,  and  that  no  part  of 
the  piling  was  on  the  land  of  the  plaintiff',  and  no  negligence  in 
the  premises  on  its  part  is  claimed.  All  these  facts  may  be  con- 
ceded, and  still  the  act  of  the  defendant  in  maintaining  the  piling 
be  a  continuing  nuisance  as  to  the  plaintiff'.  The  obstruction  was 
lawful  as  to  the  public,  but  the  legislature  could  not  authorize 
the  defendant  to  maintain  it  as  against  a  private  party  whom  it 
injured.  Hueston  v.  Boom  Co.,  76  Minn.  251,  79  N.  W.  92.  The 
fact  that  the  obstruction  did  not  physically  touch  the  plaintift''s 
land  is  immaterial;  for  while  the  trespass  or  injury  is  not  direct, 
but  indirect,  the  plaintiff's  damages  are  just  as  great  as  if  some 
part  of  the  obstruction  rested  on  his  land.  In  the  case  of  Bryne 
V.  Railway  Co.,  supra,  the  case  of  the  injury  to  the  plaintiff's  land 
was  the  construction  and  maintenance  of  the  defendant's  roadbed, 
no  part  of  which  was  on  the  plaintiff's  land,  so  as  to  obstruct  a 
natural  water  course.  This  was  held  to  be  a  continuing  nuisance, 
for  which  successive  actions  could  be  maintained.  See,  also,  Jung- 
blum  V.  Railroad  Co.,  70  Minn.  160,  72  N.  W.  971. 

In  the  case  of  Adams  v.  Railroad  Co.,  39  Minn.  286,  39  N.  W. 
629,  1  L.  R.  A.  493,  12  Am.  St.  Rep.  644,  the  defendant,  by  virtue  of 
an  ordinance  of  the  city  of  Winona,  lawfully  constructed  and  op- 
erated its  railway,  without  negligence,  in  and  along  a  public  street 
of  the  city  upon  which  the  plaintiff's  land  fronted,  no  part  of  which 
was  physically  touched  by  the  railway,  but  it  was  injured  thereby, 
and  it  was  held  that  the  measure  of  damages  was  the  depreciation 
of  the  rental  value  of  the  land  to  the  commencement  of  the  action. 
The  act  of  the  defendant  in  the  case  at  bar  in  placing  and  main- 


94  COMPENSATORY  DAMAGES 

taining  the  piling  in  the  river  was,  whatever  it  may  have  been  as  to 
the  pubHc,  as  to  the  plaintiff  a  continuing  trespass  or  nuisance, 
and  he  was  entitled  to  bring  successive  actions  to  recover  his  dam- 
ages as  they  accrued.  It  follows  that  the  trial  court  erred  in  hold- 
ing the  former  judgment  a  bar.  Order  reversed,  and  new  trial 
granted. 


3.  Damages  Caused  by  Permanent  Structures 


HARVEY  V.  MASON  CITY  &  FT.  D.  R.  CO. 

(Supreme  Court  of  Iowa.  1906.     129  Iowa,  465,  105  N.  W.  958,  3  L.  R.  A. 
[N.  S.]  973,  113  Am.  St.  Rep.  483.) 

The  plaintiff  is  the  owner  of  a  tract  of  land  near  the  boundary 
of  which  there  is  a  shallow  pond.  The  natural  slope  and  drainage 
of  the  tract  and  other  land  in  the  vicinity  is  in  the  direction  of  this 
pond.  In  1902  the  defendant  company  secured  a  right  of  way  and 
constructed  its  railroad  across  plaiutiff's  farm  and  through  the 
pond  near  its  outlet.  The  track  was  laid  on  an  embankment  six 
feet  above  the  surface  of  the  pond.  The  defendant  company  at- 
tempted to  provide  for  the  drainage  from  the  pond  by  a  culvert. 
This  culvert  proved  to  be  wholly  insufficient  to  carry  oft"  the  wa- 
ter, and  in  consequence  thereof  the  water  has  been  set  back,  in- 
juring plaintiff's  land  and  crops.  This  action  is  brought  to  recover 
damages  therefor.  There  was  judgment  for  defendant,  and  plain- 
tiff appeals. 

Weaver,  J.*°  *  *  *  fhe  one  debatable  question  presented  in 
argument  is  as  to  the  measure  of  plaintiff's  damages.  It  has  quite 
frequently  been  held  that  damages  for  injury  of  a  permanent  char- 
acter to  real  property,  and  especially  where  the  wrong  complained 
of  is  in  the  nature  of  a  nuisance,  which  will  continue  indefinitely 
without  change  from  any  cause  but  human  labor,  are  recoverable 
once  for  all,  and  that  ordinarily  the  measure  of  such  recovery  is 
the  decrease  in  the  fair  market  value  of  the  property  on  account 
of  such  injury.  *  *  '^'  In  such  case  the  damages  are  said  to  be 
original.  But  where  the  injury  from  the  alleged  nuisance  is  tem- 
porary in  its  nature,  or  is  of  a  continuing  or  recurring  character, 
the  damages  are  ordinarily  regarded  as  continuing,  and  one  re- 
covery against  the  wrongdoer  is  not  a  bar  to  successive  actions 
for  damages  thereafter  accruing  from  the  same  wrong.     *     *     * 

The  principle  upon  which  a  party  creating  a  continuing  nuisance 

40  Part  of  the  opinion  is  omitted  and  tbe  statement  of  facts  is  rewritten. 


PAST   AND    FUTURE    LOSSES  95 

is  held  liable  to  successive  actions  for  damages  is  that  he  had  a 
legal  right  and  is  under  legal  obligation  to  remove,  change,  or 
repair  the  structure  or  thing  complained  of,  and  thereby  terminate 
the  injury  to  his  neighbor;  and,  failing  so  to  do,  each  days'  con- 
tinuance of  the  nuisance  is  a  repetition  of  the  original  wrong,  and 
a  new  action  will  lie  therefor.  Railroad  v.  Mihlman,  17  Kan.  231; 
New  Salem  v.  Mill  Co.,  138  Mass.  8;  Colrick  v.  Swinburne,  105 
N.  Y.  503,  12  N.  E.  427.  If  the  structure  or  thing  complained  of 
is  of  a  lasting  character,  though  perhaps  not  strictly  permanent 
according  to  the  ordinary  definition  of  the  term,  it  has  also  been 
held  that  the  person  injured  may  elect  to  treat  it  as  permanent 
and  recover  original  damages,  and  a  judgment  obtained  in  an  ac- 
tion tried  upon  that  theory  will  operate  as  a  bar  to  any  further 
claim  for  damages  on  account  of  the  continuance  of  the  nuisance. 
Aldworth  v.  Lynn,  153  Mass.  53,  26  N.  E.  229,  10  L.  R.  A.  210, 
25  Am.  St.  Rep.  608;  Ridley  v.  Railroad.  118  N.  C.  996,  24  S.  E. 
730,  32  L.  R.  A.  708:  White  v.  Railroad  Co.,  113  N.  C.  610,  18  S. 
E.  330,  22  L.  R.  A.  627,  37  Am.  St.  Rep.  639;  Fowle  v.  New  Haven 
&  Northampton  Co.,  112  Mass.  334,  17  Am.  Rep.  106.  And  see 
Hollenbeck  v.  Marion,  116  Iowa,  69,  89  N.  W.  210;  Noe  v.  Rail- 
road, 76  Iowa,  362,  41  N.  W.  42;  Hodge  v.  Shaw,  85  Iowa,  137, 
52  N.  W.  8,  39  Am.  St.  Rep.  290. 

The  confusion  which  is  found  in  the  precedents  has  arisen  not 
so  much  from  the  statement  of  governing  principles  as  from  the 
inherent  difficulty  in  clearly  distinguishing  injuries  which  are  orig- 
inal and  permanent  from  those  which  are  continuing,  and  in  as- 
signing each  particular  case  to  its  appropriate  class.  In  Powers 
v.  Council  Bluffs,  45  Iowa,  652,  24  Am.  Rep.  792,  this  court  cited 
with  approval  ths  definition  of  permanent  injury  given  in  Troy 
V.  Railroad  Co.,  3  Fost.  (N.  H.)  83,  55  Am.  Dec.  177:  "Whatever 
the  nuisance  is  of  such  character  that  its  continuance  is  necessa- 
rily an  injury,  and  where  it  is  of  a  permanent  character  that  will 
continue  without  change  from  any  cause  except  human  labor,  there 
the  damage  is  an  original  damage,  and  may  be  at  once  fully  com- 
pensated." This  definition  we  still  think  correct,  but  a  failure  to 
carefully  construe  and  apply  it  has  led  to  some  apparent  incon- 
sistencies in  this  and  some  other  courts. 

It  will  be  observed  from  a  reading  of  the  quoted  paragraph  that 
the  term  "permanent,''  so  often  made  use  of  in  connection  with  the 
right  to  recover  original  damages,  has  reference  not  alone  to  the 
character  of  the  structure  or  the  thing  which  produces  the  al- 
leged injury,  but  also  to  the  character  of  the  injury  produced  by 
it.  In  other  words,  the  structure  or  thing  producing  the  injury 
may  be  as  permanent  and  enduring  as  the  hand  of  man  can  make 
it,  yet  if  the  resulting  injury  be  temporary  or  intermittent,  de- 
pending on  future  conditions  which  may  or  may  not  arise,  the 
damages   are  continiu'ng,   and  successive  actions  will   lie   for  sue- 


9G  COMPENSATORY   DAMAGES 

cessive  injuries.  This  thought,  which  is  clearly  implied  in  the 
quoted  definition,  is  further  elaborated  in  the  same  case  (Troy  v. 
Railroad  Co.,  supra)  as  follows:  "But  where  the  continuance  of 
such  act  is  not  necessarily  injurious,  and  where  it  is  necessarily 
of  a  permanent  character,  but  may  or  may  not  be  injurious,  or 
may  or  may  not  be  continued,  then  the  injury  to  be  compensated 
in  a  suit  is  only  the  damage  that  has  happened." 

Stating  the  same  rule  in  somewhat  different  form,  it  has  also 
been  said  that  "when  such  structure  is  permanent  in  its  character 
and  its  structure  and  maintenance  are  not  necessarily  injurious, 
but  may  or  may  not  be  so,  the  injury  to  be  compensated  in  a  suit 
is  only  the  damage  which  has  happened,  and  there  can  be  as  many 
successive  recoveries  as  there  are  successive  injuries."  Railroad 
Co.  V.  Biggs,  52  Ark.  240,  12  S.  W.  331,  6  L.  R.  A.  804,  20  Am. 
St.  Rep.  174.  *  *  *  Possibly  as  good  an  illustration  of  the 
distinction  as  can  be  suggested  is  in  the  case  of  the  construction 
of  a  milldam  across  the  course  of  a  stream.  So  far  as  the  dam  op- 
erates to  permanently  overflow  the  land  of  another  and  take  away 
from  the  owner  all  beneficial  use  of  his  property,  the  damage  may 
be  treated  as  original  and  all  recovered  in  one  action ;  but  so  far 
as  it  may  cause  only  a  periodical  or  occasional  flooding  the  dam- 
age is  continuing  and  successive  recoveries  can  be  had.  Bizer  v. 
Ottumwa  H.  P.  Co.,  70  Iowa,  145,  30  N.  W.  172;  Close  v.  Samm, 
27  Iowa,  503;  Gibson  v.  Fischer,  68  Iowa,  29,  25  N.  W.  914;  Wat- 
son v.  Van  Meter,  43  Iowa,  76. 

Not  keeping  in  mind  this  distinction  between  the  permanent 
character  of  the  cause  and  the  resultant  injury,  the  court  has  been 
led  in  a  few  instances  to  appear  to  make  the  former  the  sole  test 
whether  the  damages  in  question  were  original;  but  we  think  this 
has  never  been  done  where  the  question  here  presented  has  been 
raised  and  considered.  Alore  frequently  than  otherwise,  in  cases 
of  this  class,  the  court  has  simply  decided  the  question  before  it  on 
the  theory  upon  which  it  has  been  presented  by  counsel,  without 
attempting  to  determine  its  correctness  as  an  abstract  principle. 
As  applied  to  obstructions  of  water  and  drainage  ways  by  railway 
embankments,  some  courts  have  drawn  a  distinction,  not  generally 
recognized,  between  those  which  are  constructed  solidly,  without 
culvert,  trestle,  or  other  opening  for  the  escape  of  water,  and  those 
in  which  an  opening  is  provided,  but  proves  to  be  insufficient  for 
the  purpose.  According  to  these  precedents,  the  first  condition 
above  mentioned  presents  a  case  for  original  damages,  and  the 
latter  a  case  for  continuing  damages.  Such  seems  to  have  been 
the  thought  controlling  the  decision  in  Haisch  v.  Railroad  Co.,  71 
Iowa,  606,  33.  N.  W.  126,  and  Stodghill  v.  Railroad  Co.,  53  Iowa, 
341,  5  N.  W.  495. 

Applying  the  test  suggested  by  the  foregoing  discussion,  we  are 
disposed  to  hold  that  damages  arising  from  the  occasional  flooding 


PAST   AND    FUTURE    LOSSES 


97 


of  land  by  reason  of  an  insufficient  culvert  upon  the  land  of  an 
adjacent  proprietor  are  not  original,  although  if  the  claim  for  dam- 
ages be  made  and  the  action  be  tried  on  the  theory  that  they  are 
odginal,  the  parties  will  be  bound  thereby.  In  this  conclusion 
we'' are' supported  by  the  great  preponderance  of  the  authori- 
ties. *  *  *  The  case  of  Fowle  v.  Railroad  Co.,  107  Mass.  352, 
which  has  been  quite  frequently  cited  as  sustaining  the  opposite 
theory  is,  upon  that  point,  expressly  disapproved  by  the  same  court 
in  the  later  case  of  Aldworth  v.  Lynn,  153  Mass.  53,  26  N.  E.  229, 
10  L.  R.  A.  210,  25  Am.  St.  Rep.  608. 

It  must  be  remembered,  also,  in  the  case  at  bar,  that  the  em- 
bankment complained  of  was  lawfully  made,  for  a  lawful  purpose. 
and  wholly  upon  the  premises  of  the  defendant.  In  itself  it  did 
not  constitute  an  invasion  of  the  plaintifif's  property  or  property 
rights,  and  the  injuries,  if  any,  to  the  adjacent  land,  were  conse- 
quential, only  arising  from  the  negligence  of  the  defendant  in  con- 
structing it.  Such  being  the  case,  it  would  seem  an  elementary 
proposition  that  to  recover  damages  the  plaintiff  must  show  that 
he  has  in  fact  suffered  injury  therefrom,  and  not  simply  that  an 
injury  is  threatened.  Possibly  the  threatened  injury  might  be 
sufficient  ground  to  sustain  a  suit  in  equity  for  an  injunction 
(Moore  v.  Railroad  Co.,  75  Iowa,  263,  39  N.  W.  390)  ;  but  we  find 
no  precedent  for  holding  it  a  sufficient  basis  for  an  action  at  law 
for  the  recovery  of  damages.  This  rule  has  been  directly  and  in- 
directly affirmed  by  us  on  repeated  occasions.  Miller  v.  Railroad 
Co.,  63  Iowa,  680,  16  N.  W.  567;  Sullens  v.  Railroad  Co.,  74  Iowa, 
659!  38  N.  W.  545,  7  Am.  St.  Rep.  501 ;  Powers  v.  Council  Bluffs, 
45  Iowa,  652,  24  Am.  Rep.  792 ;  Hunt  v.  Railroad  Co.,  86  Iowa,  22, 
52  N.  W.  668,  41  Am.  St.  Rep.  473 ;  Drake  v.  Railroad  Co.,  63  Iowa, 
309,  19  N.  W.  215,  50  Am.  Rep.  746;  Van  Orsdol  v.  Railroad  Co., 
56  iowa,  470,  9  N.  W.  379;  Pettit  v.  Grand  Junction,  119  Iowa, 
352,  93  N.  W.  381. 

The  Powers  Case,  above  cited,  has  been  much  criticised  as  an- 
nouncing the  doctrine  that  the  right  of  action  to  the  landowner 
dates  from  the  negligent  act  which  results  in  injury  to  his  prop- 
erty, and  as  making  an  improper  application  of  the  rule  of  per- 
manent damages.  It  has  also  been  repeatedly  distinguished  by 
us  in  later  cases,  and  we  have  declined  to  extend  the  application 
of  the  doctrine  there  announced.  Pettit  v.  Grand  Junction,  119 
Iowa,  352,  93  N.  W.  381 ;  Costello  v.  Pomeroy,  120  Iowa,  213,  94 
N.  W.  490;  Drake  v.  Railroad  Co.,  63  Iowa,  309,  19  N.  W.  215,  50 
Am.  Rep.  746.  The  first  criticism  above  mentioned  is  based  upon 
a  misapprehension  of  the  facts  there  presented.  The  wrongful  act 
there  charged  was  the  negligent  changing  of  the  course  of  a  stream 
in  such  manner  that  a  gradual  cutting  back  and  widening  of  its 
channel  from  its  point  of  discharge  ensued.  The  change  was  made 
Coolly  Dam. — 7 


98  COMPENSATORY   DAMAGES 

in  1859,  but  the  recession  of  the  cut  did  not  reach  plaintiff's  lot  un- 
til the  year  1866.  More  than  five  years  after  the  latter  date  plain- 
tiff brought  suit,  and  his  claim  was  held  to  be  barred.  The  right 
of  action  was  not  held,  as  has  been  supposed,  to  have  accrued 
when  the  course  of  the  stream  was  negligently  changed,  but  when 
the  plaintiff's  premises  were  actually  encroached  upon.  Such  was 
our  construction  of  the  rule  of  Powers'  Case  in  deciding  Miller 
V.  Railroad,  63  Iowa,  680,  16  N.  W.  567,  although  we  later  fellmtd 
the  error  of  citing  it  in  the  opposite  effect  in  Grand  Lodge  v.  Gra- 
ham, 96  Iowa,  614,  65  N.  W.  837,  31  L.  R.  A.  133. 

We  think,  however,  that  so  far  as  Ihe  Powers  Case  goes  to  the 
time  when  a  right  of  action  accrued  to  the  property  owner  it  is  cor- 
rectly interpreted  in  the  Miller  Case,  and  is  strictly  in  harmony 
with  the  weight  of  authority.  It  is  also  an  important  considera- 
tion that  the  Powers  Case  was  against  a  municipal  corporation, 
the  liability  of  which  for  injuries  of  this  nature  is  restricted  within 
much  narrower  limits  than  is  the  liability  of  the  private  citizen. 
Vanderweile  v.  Taylor,  65  N.  Y.  341 ;  Cedar  Falls  v.  Hansen,  104 
Iowa,  189,  7Z  N.  W.  585,  65  Am.  St.  Rep.  439. 

The  further  question,  whether  the  injury  there  under  considera- 
tion should  have  been  held  to  be  permanent  and  damages  recov- 
erable once  for  all  from  the  moment  the  stream  ate  its  way  across 
{he  boundary  of  plaintiff's  lot,  admits  of  more  doubt,  and  whether 
we  should  be  inclined'  to  apply  the  undoubted  rule  of  law  there 
affirmed  to  another  case  involving  like  fact  conditions  we  need  not 
now  consider  or  decide.  *  *  *  The  judgment  appealed  from 
is  therefore  reversed.*^ 

HENRY  v.  OHIO  RIVER  R.  CO. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1895.    40  W.  Va.  234, 

21   S.    E.  8G3.) 

Trespass  on  the  case,  brought  by  Darius  Henry  against  the  Ohia 
River  Railroad  Company.  The  trial  court  directed  a  verdict  for 
defendant,  and,  judgment  being  entered  thereon,  plaintiff  brings 

error. 

Brannon,  J.*^  *  *  *  I  ^viii  now  consider  whether,  under 
the  evidence,  the  action  was  barred,  so  as  to  see  whether  the  ac- 
tion of  the  court  in  directing  the  jury  to  find  for  the  defendant,  on 
the  theory  that  the  action  was  barred,  is  correct  or  erroneous. 
The  ground  of  action  averred  in  the  declaration  is  that  the  plaintiff 
was  owner  of  a  lot  of  land  in  the  town  of  Clifton,  on  which  was  his 
dwelling,  bounding  on  a  certain  street,  and  the  railroad  company 

4  6  See  also,  Doran  v.  City  of  Seattle,  24  Wash.  182,  64  Pac.  230,  54  L.  R. 
A.  532,  85  Am.  St.  Rep.  948  (1901),  where  will  be  found  a  general  review  of 
authorities. 

4  7  Tart  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


PAST   AND    FUTURE    LOSSES  99 

built  its  railroad  across  the  street,  and  in  so  doing  raised  an  em- 
bankment across  the  street  on  which  its  track  was  laid,  and  main- 
tarns  it  to  the  great  detriment  of  the  said  property;  that  running 
along  by  the  side  of  the  street,  and  within  its  bounds,  is  a  drain 
or  culvert  used  to  carry  off  water  accumulating  on  the  street  from 
rain  and  snow;  that  the  embankment  was  so  carelessly,  negligent- 
ly, and  unskillfully  made  that  the  water  cannot  pass  off'  the  street, 
as  it  had  ahvays  done  before  the  embankment  was  made,  but,  by 
reason  of  such  improper  construction  of  the  embankment,  gathers 
on  the  street  in  great  quantity,  and  fiows  into  the  plaintiff's  lot, 
and  into  the  cellar  under  his  dwelling,  and  remains  in  the  cellar 
for  weeks  and  months,  and  deprives  the  plaintiff  of  the  use  of  the 
cellar,  and  renders  the  dwelling  damp  and  unhealthy,  and  damages 
the  use  of  the  property  as  a  home,  and  renders  the  property  less 
valuable  than  it  would  be  without  the  embankment. 

Though  general  detriment  to  the  plaintiff''s  property  is  alleged, 
the  specification  is  the  overflow  of  water  from  rains  and  snows! 
transient  and  recurrent  causes.  When  does  the  statute  of  limita- 
tions begin  to  run  in  such  case?  Shall  we  count  from  the  making 
of  the  embankment,  or  from  each  overflow  as  it  recurs?  Here 
the  lines  of  thought  and  demarcation  are  close,  the  application  of 
principles  of  law  in  particular  instances  difficult,  and  the  author- 
ities differing.  The  statute  begins  to  run  from  the  time  the  cause 
of  action  accrues.  But  when  did  that  accrue  in  this  case?  The  act 
of  the  defendant  was  the  building  of  the  embankment,  but  that,  in 
Itself,  alone  did  not  harm  the  plaintiff.  He  could  not  sue  for  that, 
as  no  harm  as  yet  was  done  his  property.  Later  on  damage  is 
done  him  by  overflow.  The  water  is  the  immediate  agent  doing 
the  injury.  We  seek  the  cause  of  its  presence,  and  find  the  em*^ 
bankment  is  the  cause  of  its  presence.  The  overflow  is  conse- 
quential from  the  embankment.  Never  till  this  overflow  did  the 
plaintiff  have  right  to  sue.  Had  he  sued  at  once  on  the  making 
of  the  road,  what  would  have  been  the  basis  of  damage?     The 

building  of  the  embankment  was  the  remote  or  primal  cause the 

causa  causans— in  the  line  or  process  of  the  production  of  the  in- 
jury; but  the  overflow  consequent  upon  it  is  the  direct  cause  of 
harin— the  gravamen  of  the  action.  If  one  put  a  log  in  the  road, 
no  individual  can  sue  for  that  only ;  but  if  he  fall  over  it  he  may 
sue,  and  the  statute  runs  from  the  fall.  There  must  be  a  wrong 
and  some  loss  to  warrant  an  action.  The  action  accrues  when  the 
damage  is  sustained  by  the  plaintiff",  not  when  the  causes  are  first 
set  in  motion  ultimately  producing  the  injury  as  a  consequence 
Wood,  Nuis.  §  865;  Lewis,  Em.  Dom.  §  666;  Wood,  Lim.  §  180- 
16  Am.  &  Eng.  Enc.  Law,  988;  13  Am.  &  Kng.  Enc.  Law,  667  •  Anir' 
Lim.  §  300.  '        '       h- 

As  stated  in  the  elaborate  and  valuable  note  to  case  of  Wells  v. 
New  Haven  &  Northampton  Co.,   151  Mass.  46,  23  N.  E.  724,  21 


100  COMPENSATORY   DAMAGES 

Am.  St.  Rep.  423  in  1  Am.  Ry.  &  Corp.  Rep.  708,  the  fundamental 
question  is  one  of  damages,  and  may  be  put  thus :  When,  in  a 
suit  for  damages  resulting  from  a  wrongful  act,  must  there  be  a 
recovery  in  one  suit  for  all  damages  past  and  prospective,  and 
when  must  the  recovery  be  limited  to  damages  prior  to  the  suit, 
leaving  future  damages  for  future  suits,  as  future  damages  occur? 
The  question  usually  comes  up  in  one  of  three  forms :  In  consider- 
ing the  measure  of  damages,  in  considering  whether  the  action  is 
barred  by  limitation,  and  in  considering  whether  it  is  barred  by  a 
former  recovery.  Now,  when  the  case  is  one  of  such  nature  as  to 
enable  the  party  in  one  suit  to  recover  future  as  well  as  past  dam- 
ages, there  the  statute  runs  from  the  original  beginning  of  the 
nuisance ;  but,  where  there  can  only  be  recovery  for  past  dam- 
ages, the  statute  does  not  run  from  the  institution  of  the  nuisance, 
but  from  the  injury,  when  it  occurs  or  recurs  as  its  consequence. 
Where  the  nuisance  is  permanent,  so  that  it  will  continue  unless 
labor  be  applied  to  change  it,  and  it  necessarily  injures  the  plain- 
tiff, there  must  be  a  recovery  in  one  suit  for  all  damage,  and  none 
other  can  be  afterwards  brought,  and  recovery  of  damages  will 
give  the  defendant  right  to  continue  his  nuisance  without  further 
claim  from  the  individual ;  but,  where  it  is  otherwise,  there  can- 
not be  recovery  for  future  damages,  but  only  from  time  to  time 
as  they  occur,  and  one  recovery  does  not  justify  the  perpetuation 
of  the  nuisance,  but  there  may  be  recovery  after  recovery,  as  long 
as  continued.  This  doctrine  is  well  settled  and  is  recognized  by 
this  court  in  Hargreaves  v.  Kimberly,  26  W.  Va.  787,  53  Am.  Rep. 
121 ;  Watts  v.  Railroad  Co.,  39  W.  Va.  196,  19  S.  E.  521,  23  L.  R. 
A.  674,  45  Am.  St.  Rep.  894;  Rogers  v.  Driving  Co.,  39  W.  Va.  272, 
19  S.  E.  401.  See  Wood,  Nuis.  §  865;  Wood,  Lim.  §  180.  See 
exhaustive  note  to  Hargreaves  v.  Kimberly,  53  Am.  Rep.  123,  be- 
ing the  opinion  in  Uline  v.  Railroad  Co.,  101  N.  Y.  98,  4  N.  E.  536, 
54  Am.  Rep.  661. 

In  Plate  v.  Railroad  Co.,  37  N.  Y.  473,  an  action  for  maintaining 
railroad  track  and  ditches,  causing  water  to  flow  on  land,  just  like 
this  case,  it  was  held  that  a  former  recovery  was  no  bar  to  a  sec- 
ond action,  and  that  only  past,  not  prospective,  damages  could  be 
recovered  in  such  case.  The  New  York  cases  collected  in  the 
opinion  of  Uline  v.  Railroad  Co.,  just  mentioned,  strongly  support 
our  view.  In  our  case  of  Hargreaves  v.  Kimberly  it  is  stated  as 
a  criterion  whether  one  recovery  would  give  a  right  to  continue 
the  cause.  The  trouble  is  to  see  what  cases  they  are ;  in  what 
cases  a  recovery  for  a  trespass  would  confer  a  right,  pass  title  to 
occupy  land,  or  permanently  injure  it.  Can  land  be  thus  acquired? 
I,  however,  make  no  point  on  this,  but  the  suggestion  or  doubt 
only  strengthens  the  holding  on  the  real  point  in  this  case.  Can 
it  be  possible  that  an  amount  of  damages  could  in  this  suit  be  re- 
covered to  cover  all  damages  for  all  time  to  come  from  repeated 


PAST   AND    FUTURE   LOSSES 


101 


overflows,  when  the  company  might,  by  small  work,  entirely  rem- 
edy the  evil?  Could  the  jury  or  we  act  on  any  assumption  that 
it  would  not  do  so,  rather  than  suffer  repeated  actions?  I  think 
not.  It  seems  settled  that,  if  a  milldam  cause  an  overflow  upon 
land  of  a  riparian  owner,  the  cause  of  action  is  continuous,  and  he 
can  sue  as  long  as  the  overflow  continues,  until  the  right  to  over- 
flow is  vested  and  justified  by  prescription.  Staple  v.  Spring,  10 
Mass.  72 ;   Field  v.  Brown,  24  Grat.  (Va.)  74. 

I  would  liken  this  case  to  the  case  of  a  milldam,  save  that,  if 
anv  dift'erent,  this  is  more  plainly  the  case  of  continuous  mjury, 
actionable  upon  each  recurring  overflow.  I  think  the  general  rule 
as  to  nuisances  applies  to  this  case,  it  being  one  of  recurring,  in- 
termittent, or  occasional  injury.  That  rule  is  that  every  continu- 
ance from  day  to  day  is  a  new  nuisance,  for  which  a  fresh  action 
lies,  so  that,  though  action  for  the  original  nuisance  be  barred, 
damages  are  recoverable  for  the  statutory  period  for  injuries  with- 
in it,  provided  enough  time  has  not  elapsed  to  give  the  person 
maintaining  the  nuisance  a  right  to  do  so  by  adversary  use.  4 
Minor,  Inst.  509  (472),  546  (507);  Wood,  Nuis.  §  865;  Wood, 
Lini.  §  180.  Now,  this  embankment  itself  has  the  element  of  per- 
manency, it  is  trfle,  and  that  far  complies  with  the  rule  warrant- 
ing recovery  of  past  and  future  damages,  in  one  action,  but  it  does 
no't  necessarily  per  se  injure  the  plaintiff's  property  in  the  respect 
to  the  mode  of  injury  charged;  that  is,  overflow.  That  happens 
only  when  rains  or  snows  come.  If  the  suit  were  for  cutting  off 
access  by  reason  of  the  embankment  only,  it  would  be  dift'erent. 
Smith  V.  Railroad  Co.,  23  W.  Va.  451. 

To  warrant  final  recovery  for  past  and  future  damage,  there  must 
be  a  structure  permanent  in  nature,  and  damage  directly  and  at 
once  necessarily  arising  from  it.  In  Miller  v.  Railway  Co.,  63 
Iowa,  680,  16  N.  W.  567,  it  was  held  that  against  a  cause  of  action 
for  damages  from  water  flowing  through  a  ditch  wrongfully  dug, 
the  statute  runs,  not  from  the  date  of  digging  the  ditch,  but  from 
damage  caused  by  it.  In  Wells  v.  New  Haven  &  Northampton 
Co.,  siipra,  it  was  held  that  where  a  railroad  company  collected 
the' water  of  eight  natural  streams,  and  discharged  it  with  consid- 
erable surface  water  upon  land  where  much  of  it  had  not  been  ac- 
customed to  flow,  that  the  nuisance  was  continuous,  and  action 
was  not  barred  in  six  years  from  the  erection,  and  one  subse- 
quently purchasing  the  land  could  sue  for  damages.  So  one  pur- 
chasing after  the  improvement  recovered  in  Canal  Co.  v.  Lee,  22 
N.  J.  Law,  243,  which  he  could  not  do  if  the  cause  of  action  accrued 
from  the  date  of  the  work.  Here  the  cause  of  action  is  not  from 
the  work,  as  it  would  be  if  the  action  were  for  the  mere  construc- 
tion of  the  embankment  on  plaintiff's  land  without  authority,  or 
for  cutting  off  access  to  his  lot.  The  construction  of  the  work  was 
lawful   and   authorized,  but   it   is   the   manner  of  construction,  the 


102  COMPENSATORY  DAMAGES 

negligent  manner  of  construction,  entailing  injury  later  as  a  con- 
sequence by  producing  overflow,  that  is  alleged  as  the  wrong. 

The  plea  was  properly  received,  but  the  evidence  showed  over- 
flow within  five  years,  and  hence  the  plea  could  not  justify 
judgment  for  defendant,  as,  although  the  embankment  was  more 
than  five  years  old,  the  case  was  not  such  as  would  have  warranted 
recovery  of  future  damages  had  an  action  been  brought  within  five 
years  from  the  erection  of  the  embankment,  and,  the  damages  be- 
ing continuous,  the  statute  ran,  not  from  its  erection,  but  from 
the  overflow.  So  we  hold  that  the  court  erred  in  directing  the 
jury  to  find  for  the  railroad  company  on  the  idea  that  the  action 
was  barred  by  time.  That,  though  a  work  of  improvement,  like 
a  railroad,  is  lawful  and  under  authority,  yet,  if  damage  result  to 
an  individual  by  overflow  of  water  by  reason  of  negligent  construc- 
tion, he  can  recover,  is  well  settled.  Gillison  v.  City  of  Charleston, 
16  W.  Va.  282,  37  Am.  Rep.  763;  Knight  v.  Brown,  25  W.  Va. 
808 ;  Taylor  v.  Railroad  Co.,  33  W.  Va.  39,  10  S.  E,  29.  It  is  only 
an  application  of  the  maxim :  "So  use  your  own  property  or  right 
that  you  do  not  injure  another."  I  understand,  indeed,  that  in 
this  state  negligence  is  not  an  essential  to  recovery,  but  only  dam- 
age. Gillison  v.  City  of  Charleston,  16  W.  Va.  282,  37  Am.  Rep. 
763;  Johnson  v.  Parkersburg,  16  W.  Va.  402,  37  Am.  Rep.  779. 
But,  where  the  landowner  has  been  compensated,  negligent  con- 
struction is  required  to  maintain  action.  *  *  *  Reversed  and 
remanded. 


VIII.  Elements  of  Compensation — Physical  Pain  and 
Inconvenience  ** 


GOODHART  v.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  Pennsylvania,  1896.    177  Pa,  1,  35  Atl.  191,  55 
Am.  St.  Rep.  705.) 

Action  by  James  M.  Goodhart  against  the  Pennsylvania  Railroad 
Company  for  damages  for  personal  injuries.  There  was  judgment 
for  plaintiff  and  defendant  appeals. 

Williams,  J.*^  The  plaintiff  received  the  injury  complained  of 
while  a  passenger  on  one  of  the  trains  of  defendant  company. 
*  *  *  Damages  for  a  personal  injury  consist  of  three  principal 
items-:   First,  the  expenses  to  which  the  injured  person  is  subjected 

4  8  For  discussion  of  principles,  see  Hale  on   Damages  (2d  Ed.)    §§  35-39. 
49  Part  of  tlie  opinion  is  omitted. 


ELEMENTS    OF   COMPENSATION— PAIN    AND    INCONVENIENCE 


103 


by  reason  of  the  injury  complained  of;  second,  the  inconvenience 
and  suffering  naturally  resulting  from  it;  third,  the  loss  of  earn- 
ing power,  if  any,  and  whether  temporary  or  permanent,  conse- 
qu'ent  upon  the  character  of  the  injury.  Owens  v.  Railway  Co., 
155  Pa.  334,  26  Atl.  748. 

The  expenses  for  which  a  plaintiff  may  recover  must  be  such 
as  have  been  actually  paid,  or  such  as,  in  the  judgment  of  the 
jury,  are  reasonably  necessary  to  be  incurred.  The  plamtiff  can- 
not recover  for  the  nursing  and  attendance  of  the  members  of  his 
own  household,  unless  they  are  hired  servants.  The  care  of  his 
wife  and  minor  children  in  ministering  to  his  needs  involves  the 
performance  of  the  ordinary  offices  of  affection,  which  is  their 
duty;  but  it  involves  no  legal  liability  on  his  part,  and  therefore 
affords  no  basis  for  a  claim  against  a  defendant  for  expenses  m- 
curred.  A  man  may  hire  his  own  adult  children  to  work  for  him 
in  the  same  manner  and  with  same  effect  that  he  may  hire  other 
persons,  but,  in  the  absence  of  an  express  contract,  the  law  will 
not  presume  one,  so  long  as  the  family  relation  continues. 

Pain  and  suffering  are  not  capable  of  being  exactly  measured 
by  an  equivalent  in  money,  and  we  have  repeatedly  said  that  they 
have  no  market  price.  The  question  in  any  given  case  is  not  what 
it  would  cost  to  hire  some  one  to  undergo  the  measure  of  pain 
alleged  to  have  been  suffered  by  the  plaintiff,  but  what,  under  all 
the  circumstances,  should  be  allowed  the  plaintiff  in  addition  to 
the  other  items  of  damage  to  which  he  is  entitled,  in  consideration 
of  suffering  necessarily  endured.  Baker  v.  Pennsylvania  Co.,  142 
Pa.  503,  21  Atl.  979,  12  L.  R.  A.  698.  This  should  not  be  estimated 
by  a  sentimental  or  fanciful  standard,  but  in  a  reasonable  man- 
ner, as  it  is  wholly  additional  to  a  pecuniary  compensation  afforded 
by  the  first  and  third  items  that  enter  into  the  amount  of  the  ver- 
dict in  such  cases.  By  way  of  illustration,  let  us  assume  that  a 
plaintiff-  has  been  wholly  disabled  from  labor  for  a  period  of  20 
days  in  consequence  of  an  injury  resulting  from  the  negligence 
of  another.  This  lost  time  is  capable  of  exact  compensation.  It 
will  require  so  much  money  as  the  injured  man  might  have  rea- 
sonably earned  in  the  same  time  by  the  pursuit  of  his  ordinary 
calling. 

But  let  us  further  assume  that  these  days  of  enforced  idleness 
have  been  days  of  severe  bodily  suffering.  The  question  then  pres- 
ented for  the  consideration  of  the  jury  would  be:  What  is  it  rea- 
sonable to  add  to  the  value  of  the  lost  time  in  view  of  the  fact 
that  the  days  were  filled  with  pain,  instead  of  being  devoted  to 
labor?  Some  allowance  has  been  held  to  be  proper;  but,  in  an- 
swer to  the  question,  "How  much?"  the  only  reply  yet  made  is 
that  it  should  be  reasonable  in  amount.  Pain  cannot  be  measured 
in  money.  It  is  a  circumstance,  however,  that  may  be  taken  into 
the  account  in    fixing  the  allowance  that   should   be   made   to   an 


104  COMPENSATORY   DAMAGES 

injured  party  by  way  of  damages.  An  instruction  that  leaves  the 
jury  to  regard  it  as  an  independent  item  of  damages,  to  be  com- 
pensated by  a  sum  of  money  that  may  be  regarded  as  a  pecuniary 
equivalent,  is  not  only  inexact,  but  it  is  erroneous.  The  word 
"compensation,"  in  the  phrase  "compensation  for  pain  and  suffer- 
ing,'' is  not  to  be  understood  as  meaning  price  or  value,  but  as 
describing  an  allowance  looking  towards  recompense  for  or  made 
because  of  the  suffering  consequent  upon  the  injury.  In  comput- 
ing the  damages  sustained  by  an  injured  person,  therefore,  the 
calculaHon  may  include  not  only  loss  of  time  and  loss  of  earning 
power,  but,  in   a  proper  case,  an  allowance  because  of  suffering. 

The  third  item,  the  loss  of  earning  power,  is  not  always  easy  of 
calculation.  It  involves  an  inquiry  into  the  value  of  the  labor,  phys- 
ical or  intellectual,  of  the  person  injured,  before  the  accident  hap- 
pened to  him,  and  the  ability  of  the  same  person  to  earn  money  by 
labor,  physical  or  intellectual,  after  the  injury  was  received.  Prof- 
its derived  from  an  investment  or  the  management  of  a  business 
enterprise  are  not  earnings.  The  deduction  from  such  profits  of 
the  legal  rate  of  interest  on  the  money  employed  does  not  give 
to  the  balance  of  the, profits  the  character  of  earnings.  The  word 
"earnings"  means  the  fruit  or  reward  of  labor;  the  price  of  serv- 
ices performed.  And.  Law  Diet.  390.  Profits  represent  the  net  gain 
made  from  an  investment,  or  from  the  prosecution  of  some  busi- 
ness, after  the  payment  of  all  expenses  incurred.  The  net  gain 
depends  largely  on  other  circumstances  than  the  earning  capacity 
of  the  persons  managing  the  business.  The  size  and  location  of 
the  town  selected,  the  character  of  the  commodities  dealt  in,  the 
degree  of  competition  encountered,  the  measure  of  prosperity  en- 
joyed by  the  community,  may  make"  an  enterprise  a  decided  suc- 
cess, which  under  less  favorable  circumstances,  in  the  hands  of 
the  same  persons,  might  turn  out  a  failure.  The  profits  of  a  busi- 
ness with  which  one  is  connected  cannot  therefore  be  made  use 
of  as  a  measure  of  his  earning  power.  Such  evidence  may  tend 
to  show  the  possession  of  business  qualities,  but  it  does  not  fix 
their  value.     Its  admission  for  that  purpose  was  error. 

It  was  also  error  to  treat  this  subject  of  the  value  of  earning 
power  as  one  to  be  settled  by  expert  testimony.  An  expert  in 
banking  or  merchandizing  might  form  an  opinion  about  what  a 
man  possessing  given  business  qualifications  ought  to  be  able  to 
earn,  but  this  is  not  the  question  the  jury  is  to  determine.  They 
are  interested  only  in  knowing  what  he  did  actually  earn,  or  what 
his  services  were  reasonably  worth,  prior  to  the  time  of  his  in- 
jury. In  settling  this  question,  they  should  consider  not  only  his 
past  earnings,  or  the  fair  value  of  services  such  as  he  was  able 
to  render,  but  his  age,  state  of  health,  business  habits,  and  man- 
ner of  living.  McHugh  V.  Schlosser,  159  Pa.  480,  28  Atl.  291,  21 
L.  R.  A.  574,  39  Am.  St.  Rep.  699.     *     *     * 


ELEMENTS   OF    COMPENSATION— PAIN    AND    INCONVENIENCE 


105 


Another  subject  requires  consideration.  The  verdict  rendered 
by  the  jurv  gives  the  calculation  upon  which  the  enormous  sum 
awarded  tJ  the  plaintiff  was  based.  From  this  it  appears  that  the 
sum  of  $19,526.50  was  given  as  the  cost  of  an  annuity  of  $l,/oO 
per  annum  for  19  years.  This  calculation  assumes  (1)  that  the 
plaintiff's  earning  power  was  nearly  twice  as  great  as  he  had  him- 
self offered  it  for  to  the  company  whose  president  and  manager 
he  was.  It  assumes  (2)  that  he  had  a  reasonable  expectation  of 
life  for  19  years,  being  at  the  time  of  the  trial  about  53  years  old. 
It  assumes  (3)  that  his  earning  power,  instead  of  steadily  decreas- 
ing with  increasing  years,  would  hold  up  at  its  maximum  to  the 
ve'^v  end  of  life.  It  assumes,  in  the  fourth  place,  that  he  is  en- 
titled to  recover,  not  only  the  present  worth  of  his  future  earnings, 
as  the  jury  has  estimated  them,  but  a  sufficient  sum  to  enable  him 
to  go  out  into  the  market,  and  purchase  an  annuity  now,  equal  to 
his  estimated  earnings.  The  first,  second,  and  third  of  these  are 
assumptions  of  fact.  The  fourth  is  an  assumption  of  law,  and  is 
clearly  wrong.  When  future  payments  are  to  be  anticipated  and 
capitalized  in  a  verdict,  the  plaintiff  is  entitled  only  to  their  pres- 
ent worth.  This  is  the  exact  equivalent  of  the  anticipated  sums. 
*  *  *  The  judgment  is  reversed,  and  a  venire  facias  de  novo 
awarded/ ° 


TURNER  V.  GREAT  NORTHERN  RY.  CO. 

(Supreme  Court  of  Washington,  1896.     15  Wash.  213,  46  Pac.  243,  55  Am. 

St.   Rep.  883.) 

The  plaintiff  and  his  wife  purchased  through  tickets  from  St. 
Paul,  ^linn.,  to  Spokane,  Wash.,  over  the  defendant  company's 
road,'  the  latter  then  knowing  that  through  transportation  was  im- 
possible over  its  lines.  At  Havre,  Mont.,  the  plaintiff  was  directed 
to  leave  the  train,  to  proceed  to  Helena,  and  then  to  take  the  road 
of  the  Northern  Pacific  Railroad  Company,  which  company,  the 
defendant  stated,  would  honor  plaintiff's  ticket.  This  it,  however, 
refused  to  do.  Plaintiff  was  compelled  to  pay  fare,  and  afterward 
was  delayed  at  Missoula  for  18  days  by  reason  of  floods.  A  ver- 
dict was  rendered  for  $750.  ^ 

Anders,  J.°^  *  *  *  jn  answer  to  the  question,  "Now,  Colo- 
nel, I  wi.sh  you  would  go  on  and  state  to  the  jury  what,  if  any, 
anxiety,  worriment,  etc.,  you  suffered  on  account  of  your  delay, 
being  separated  from  your  baggage,  and  all  of  those  things  that 
are  proper  under  the   ruling  of  the  court,  in  consequence  of  this 

60  See,  also,  Schcnkel  v.  Pittsburg  &  P..  Traction  Co.,  104  I'a.  182,  44  All. 
1072  (1899). 
"  61  Part  of  the  opinion  is  omitted  and  tbe  staU'inont  of  facts  is  rewritten. 


106  COMPENSATORY  DAMAGES 

delay,"  the  plaintiff  was  allowed,  notwithstanding  the  defendant's 
objection,  to  testify  that  he  was  greatly  worried,  troubled,  and 
annoyed  by  the  combination  of  circumstances  surrounding  him 
at  that  time,  among  which  were  that  he  had  to  pay  out  more  money 
than  he  had  contemplated  paying  out ;  that  the  Northern  Pacific 
Railroad  Company  would  not  board  him  at  Missoula,  as  they  did 
their  passengers;  his  means  were  limited,  and  he  did  not  know  how 
long  he  had  to  stay  there ;  that  he  could  not  hear  from  home,  the 
telegraph  line  being  broken  down  ;  that  his  wife  was  taken  sick,  and 
lay  in  bed  three  days,  in  consequence  of  her  worriment,  and  that 
he  could  not  make  her  comfortable  under  the  circumstances.  Dam- 
ages for  "worriment"  and  disappointment  resulting  from  such  cir- 
cumstances are  too  remote  to  be  recovered  in  this  action.  The 
mental  anxiety  of  the  plaintiff  induced  by  the  sickness  of  his  wife 
and  his  inability  to  make  her  comfortable,  or  his  limited  means, 
or  his  inability  to  hear  from  home  owing  to  the  interruption  of 
telegraphic  communication,  cannot  be  regarded  as  the  proximate 
result  of  the  alleged  wrongful  acts,  or  omissions  of  the  defendant, 
and  the  court  therefore  erred  in  permitting  this  testimony  to  be 
submitted  to  the  consideration  of  the  jury. 

The  court  also  erred,  and  for  the  same  reason,  in  instructing  the 
jury  generally  that  the  plaintiff  was  entitled  to  recover,  for  worry 
and  mental  excitement,  such  sum  as  would  fairly  and  reasonably 
compensate  him  therefor.  "Damages  will  not  be  given  for  mere 
inconvenience  and  annoyance  such  as  are  felt  at  every  disappoint- 
ment of  one's  expectations,  if  there  is  no  actual  physical  or  mental 
injury."  1  Sedg.  Dam.  (8th  Ed.)  §  42.  And  hence  damages  can- 
not be  recovered  for  anxiety  and  suspense  of  mind  in  consequence 
of  delay  caused  by  the  fault  of  a  common  carrier,  Trigg  v.  Rail- 
way Co.,  74  Mo.  147,  41  Am.  Rep.  305 ;  Hobbs  v.  Railway  Co., 
L.  R.  10  O.  B.  Ill;  Hamlin  v.  Railway  Co.,  1  Hurl.  &  N.  408; 
Walsh  V.  Railway  Co.,  42  Wis.  23,  24  Am.  Rep.  376.     *     *     * 

Surely  no  court  could  say  that,  in  contemplation  of  law,^  the 
mental  agitation  or  excitement  caused  by  being  delayed  on  a  jour- 
ney is  of  a  different  character  from  that  produced  by  unexpectedly 
having  to  pay  extra  fare  for  transportation.  The  mental  sensation 
in  each  case,  whether  it  be  called  excitement,  anxiety,  annoyance, 
or  worry,  is  manifestly  the  result  of  disappointed  hope  or  expecta- 
tion merely,  for  which,  as  we  have  seen,  no  damages  can  be 
awarded.     *     *     *  ^2 

6  2  See,  also,  Baltimore  &  O.  R.  Co.  v.  Carr,  post,  p.  204. 


ELEMENTS    OF    COMPENSATION — MENTAL   SUFFERING  107 

IX.  Same— Mental  Suffering" 
1.  As  THE  Basis  of  a  Cause  of  Action 


LARSON  V.  CHASE. 

(Supreme  Court  of  Minnesota,  1S91.     47  Minn.  307,  50  N.  W.  23S,  14  L.  R. 
A.  85,  28  Am.  St.  Rep.  370.) 

Action  by  Lena  Larson  against  Charles  A.  Chase  for  the  un- 
lawful mutilation  and  dissection  of  the  body  of  plaintiff's  husband. 
The  only  damages  alleged  were  mental  suffering  and  nervous 
shock.  A  demurrer  to  the  complaint,  as  not  stating  a  cause  of  ac- 
tion, was  overruled,  and  defendant  appeals. 

Mitchell,  J.^*  This  was  an  action  for  damages  for  the  unlaw- 
ful mutilation  and  dissection  of  the  body  of  plaintiff's  deceased 
husband.     *     *     * 

The  contentions  of  defendant  may  be  resolved  into  two  proposi- 
tions. First.  That  the  widow  has  no  legal  interest  in  or  right 
to  the  body  of  her  deceased  husband,  so  as  to  enable  her  to  main- 
tain an  action  for  damages  for  its  mutilation  or  disturbance ;  that, 
if  any  one  can  maintain  such  an  action,  it  is  the  personal  repre- 
sentative. Second.  That  a  dead  body  is  not  property,  and  that 
mental  anguish  and  injury  to  the  feelings,  independent  of  any 
actual  tangible  injury  to  person  or  property,  constitute  no  ground 
of  action.  Time  will  not  permit,  and  the  occasion  does  not  re- 
quire, us  to  enter  into  any  extended  discussion  of  the  history  of 
the  law,  civil,  common,  or  ecclesiastical,  of  burial  and  the  disposi- 
tion of  the  body  after  death.     *     *     * 

Whatever  may  have  been  the  rule  in  England  under  the  ecclesi- 
astical law,  and  while  it  may  be  true  still  that  a  dead  body  is  not 
property  in  the  common  commercial  sense  of  that  term,  yet  in 
this  country  it  is,  so  far  as  we  know,  universally  held  that  those 
who  are  entitled  to  the  possession  and  custody  of  it  for  purposes 
of  decent  burial  have  certain  legal  rights  to  and  in  it  which  the 
law  recognizes  and  will  protect.  Indeed,  the  mere  fact  that  a 
person  has  exclusive  rights  over  a  body  for  the  purposes  of  burial 
leads  necessarily  to  the  conclusion  that  it  is  his  property  in  the 
broadest  and  most  general  sense  of  that  term,  viz.,  something  over 
which  the  law  accords  him  exclusive  control.  But  this  whole  sub- 
ject is  only  obscured  and  confused  by  discussing  the  question 
whether  a  corpse  is  property  in  the  ordinary  commercial  sense,  or 

6  8  For  a  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  40-41. 
64  Part  of  the  oi)inion  is  omitted  and  the  statemeut  of  facto  is  rewritten. 


108  COMPENSATORY   DAMAGES 

wIt ether  it  lias  any  value  as  an  article  of  traffic.  The  important 
fact  is  that  the  custodian  of  it  has  a  legal  right  to  its  possession 
for  the  purposes  of  preservation  and  burial,  and  that  any  inter- 
ference with  that  right  by  mutilating  or  otherwise  disturbing  the 
body  is  an  actionable  wrong.  And  we  think  it  may  be  safely  laid 
down  as  a  general  rule  that  an  injury  to  any  right  recognized  and 
protected  by  the  common  law  will,  if  the  direct  and  proximate 
consequence  of  an  actionable  wrong,  be  a  subject  for  compensation. 

It  is  also  elementary  that  while  the  law  as  a  general  rule  only 
gives  compensation  for  actual  injury,  yet,  whenever  the  breach  of 
a  contract  or  the  invasion  of  a  legal  right  is  established,  the  law 
infers  some  damage,  and,  if  no  evidence  is  given  of  any  particular 
amount  of  loss,  it  declares  the  right  by  awarding  nominal  dam- 
ages. Every  injury  imports  a  damage.  Hence  the  complaint  stated 
a  cause  of  action  for  at  least  nominal  damages.  We  think  it  states 
more.  There  has  been  a  great  deal  of  misconception  and  con- 
fusion as  to  when,  if  ever,  mental  suffering,  as  a  distinct  element 
of  damage,  is  a  subject  for  compensation.  This  has  frequently  re- 
sulted from  courts  giving  a  wrong  reason  for  a  correct  conclusion 
that  in  a  given  case  no  recovery  could  be  had  for  mental  sufferings 
placing  it  on  the  ground  that  mental  suffering,  as  a  distinct  ele- 
ment of  damage,  is  never  a  proper  subject  of  compensation,  when 
the  correct  ground  was  that  the  act  complained  of  was  not  an 
infraction  of  any  legal  right,  and  hence  not  an  actionable  wrong 
at  all,  or  else  that  the  mental  suffering  was  not  the  direct  and 
proximate  effect  of  the  wrongful  act. 

Counsel  cites  the  leading  case  of  Lynch  v.  Knight,  9  H.  L.  Cas. 
577-598.  We  think  he  is  laboring  under  the  same  misconception 
of  the  meaning  of  the  language  used  in  that  case  into  which  courts 
have  not  infrequently  fallen.  Taking  the  language  in  connection 
with  the  question  actually  before  the  court,  that  case  is  not  au- 
thority for  defendant's  position.  It  is  unquestionably  the  law,  as 
claimed  by  appellant,  that  "for  the  law  to  furnish  redress  there 
must  be  an  act  which,  under  the  circumstances,  is  wrongful;  and 
it  must  take  effect  upon  the  person,  the  property,  or  some  other 
legal  interest,  of  the  party  complaining.  Neither  one  without  the 
other  is  sufficient."  This  is  but  another  way  of  saying  that  no- 
action  for  damages  will  lie  for  an  act  which,  though  wrongful,  in- 
fringed no  legal  right  of  the  plaintiff",  although  it  may  have  caused 
him  mental  suffering.  But,  where  the  wrongful  act  constitutes 
an  infringement  on  a  legal  right,  mental  suffering  may  be  recovered 
for,  if  it  is  the  direct,  proximate,  and  natural  result  of  the  wrong- 
ful act.  It  was  early  settled  that  substantial  damages  might  be  re- 
covered in  a  class  of  torts  where  the  only  injury  suffered  is  mental 
— as  for  example,  an  assault  without  physical  contact.  So,  too, 
in  actions  for  false  imprisonment,  where  the  plaintiff  was  not 
touched  by  the  defendant,  substantial  damages  have  been  recov- 


ELEMENTS   OF    COMPENSATION — MENTAL   SUFFERING  100 

ered,  though  physically  the  plaintiff  did  not  sulifer  any  actual  detri- 
ment. In  an  action  for  seduction  substantial  damages  are  allowed 
for  mental  sufferings,  although  there  be  no  proof  of  actual  pecun- 
iary damages  other  than  the  nominal  damages  which  the  law  pre- 
sumes. The  same  is  true  in  actions  for  breach  of  promise  of  mar- 
riage. Wherever  the  act  complained  of  constitutes  a  violation  of 
some  legal  right  of  the  plaintiff,  which  always,  in  contemplation 
of  law,  causes  injury,  he  is  entitled  to  recover  all  damages  which 
are  the  proximate  and  natural  consequence  of  the  wrongful  act. 
That  mental  suft'ering  and  injury  to  the  feelings  would  be  ordi- 
narily the  natural  and  proximate  result  of  knowledge  that  the  re- 
mains of  a  deceased  husband  had -been  mutilated  is  too  plain  to 
admit  of  argument. 

In  Meagher  v.  DriscoU,  99  :^Iass.  281,  96  Am.  Dec.  759,  where 
the  defendant  entered  upon  plaintiff's  land,  and  dug  up  and  re- 
moved the  dead  body  of  his  child,  it  was  held  that  plaintiff  might 
recover  compensation  for  the  mental  anguish  caused  thereby.  It 
is  true  that  in  that  case  the  court  takes  occasion  to  repeat  the  old 
saying  that  a  dead  body  is  not  property,  and  ^makes  the  gist  of  the 
action  the  trespass  upon  plaintiff's  land ;  but  it  would  be  a  reproach 
to  the  law  if  a  plaintiff's  right  to  recover  for  mental  anguish  re- 
sulting from  the  mutilation  or  other  disturbance  of  the  remains 
of  his  dead  should  be  made  to  depend  upon  whether  in  committing 
the  act  the  defendant  also  committed  a  technical  trespass  upon 
plaintiff's  premises,  while  everybody's  common  sense  would  tell 
him  that  the  real  and  substantial  wrong  was  not  the  trespass  on 
the  land,  but  the  indignity  to  the  dead.     Order  affirmed. ^=^ 

55  Accord:  Green  v.  T.  A.  Shoemaker  &  Co.,  Ill  Md.  69,  7.S  Atl.  G88,  23 
L  R  A  (N.  S.)  6G7  (WOO) ;  Sinione  v.  Rhode  Island  Co.,  28  R.  I.  ISG,  66 
\tl  "^O-^.  9  L.  R.  A.  (N.  S.)  740  (1907) :  Purcell  v.  St.  Paul  City  Ry.  Co.,  48 
Minn  134  .50  N.  W.  1034.  16  L.  R.  A.  203  (1892).  And  compare  Sanderson  v. 
Northern  Rac.  Ry.  Co.,  88  Minn.  162,  92  N.  W.  542,  60  L.  R.  A.  40.3,  97 
Am  St.  Rep.  509  (1902).  Contra:  Spade  v.  Lynn  &  B.  R.  Co.,  168  Mass. 
285  47  N.  E.  88.  38  L.  R.  A.  512.  60  Am.  St.  Rep.  393  (1897) ;  Ward  v.  West 
Jersey  &  S.  R.  Co.,  65  N.  J.  Law,  .383.  47  Atl.  561  (1900).  But  compare  this 
case  with  Buchanan  v.  West  Jersey  R.  Co.,  52  N.  J.  Law,  265,  19  Atl.  25-1 
(ISOO). 


110  COMPENSATORY  DAMAGES 


2.  In  Actions  of  Tort 


McDERMOTT  v.  SEVERE. 

(Supreme  Court  of  United  States,  in06.     202  U.  S.  600,  26  Sup.  Ct.  709, 

50  L.  Ed.  1162.) 

Action  by  Charles  E.  Severe,  by  his  next  friend,  against  Allan 
L.  McDermott,  as  receiver  of  the  City  &  Suburban  Railway  of 
Washington,  to  recover  damages  for  personal  injuries.  A  judg- 
ment of  the  Supreme  Court  of  the  District  of  Columbia,  in  favor 
of  plaintiff  having  been  affirmed  by  the  Court  of  Appeals  (25  App. 
D.  C.  276),  the  defendant  brings  error. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court  :°*'  *  *  * 
It  is  further  urged  that  the  court  erred  in  instructing  the  jury 
upon  the  question  of  damages.  Upon  this  point  the  court  said: 
'The  jury  are  instructed  that,  if  they  find  a  verdict  for  the  plaintiff, 
they  should  render  a  verdict  in  his  favor  for  such  a  sum  (not  ex- 
ceeding the  amount  claimed  in  the  declaration)  as,  in  their  judg- 
ment, will  reasonably  compensate  him  for  the  pain  resulting  from 
the  injury  and  from  the  loss  of  his  leg;  for  the  inconvenience  to 
which  he  has  been  put,  and  which  he  will  be  likely  to  be  put, 
during  the  remainder  of  his  life,  in  consequence  of  the  loss  of  his 
leg;  for  the  mental  suffering,  past  and  future,  which  the  jury  may 
find  to  be  the  natural  and  necessary  consequence  of  the  loss  of  his 
leg,  and  for  such  pecuniary  loss,  as  the  direct  result  of  the  injury, 
which  the  jury  may  find  from  the  evidence  that  he  is  reasonably 
likely  to  sustain  hereinafter  in  consequence  of  his  being  deprived 
of  one  of  his  legs." 

The  court's  attention  was  not  called  to  any  particular  in  which 
this  charge,  which  covers  a  number  of  elements  of  damages,  was 
alleged  to  be  wrong;  only  a  general  exception  was  taken  to  the 
charge  as  given  in  this  respect.  It  has  been  too  frequently  held 
to  require  the  extended  citation  of  cases,  that  an  exception  of  this 
general  character  will  not  cover  specific  objections  which,  in  fair- 
ness to  the  court,  ought  to  have  been  called  to  its  attention,  in 
order  that,  if  necessary,  it  could  correct  or  modify  them.  A  num- 
ber of  the  rules  of  damages  laid  down  in  this  charge  were  unques- 
tionably correct;  to  which  no  objection  has  been  or  could  be  suc- 
cessfully made.  In  such  cases  it  is  the  duty  of  the  objecting  party 
to  point  out  specifically  the  part  of  the  instructions  regarded  as 
erroneous.  Baltimore  &  P.  R.  Co.  v.  Mackey,  157  U.  S.  72,  86, 
39  L.  Ed.  624,  629,  15  Sup.  Ct.  491. 

5  6  Part  of  tbe  opinion  is  omitted  and  the  statement  of  facts  is  rewritten 


ELEMENTS   OF   COMPENSATION — MENTAL   SUFFERING  HI 

It  is  now  objected  that  to  permit  a  recovery  for  a  pecuniary 
loss,  as  covered  in  the  instructions,  would  allow  the  infant  plain- 
tiff to  recover  compensation  for  his  time  before  as  well  as  after 
he  has  reached  his  majority ;  and  that,  during  infancy,  his  father 
is  entitled  to  recover  any  wages  he  might  earn.  If  the  defendant 
wished  the  charge  modified  in  this  respect,  he  should  have  called 
the  attention  of  the  court  directly  to  this  feature.  The  charge  in 
this  respect  was  general,  permitting  a  recovery  for  a  pecuniary 
loss  directly  resulting  from  the  injury.  It  would  be  very  unfair 
to  the  trial  court  to  keep  such  an  objection  in  abeyance,  and  urge 
it  for  the  first  time  in  an  appellate  tribunal. 

Furthermore,  an  objection  is  taken  to  the  charge  as  to  mental 
suffering,  past  and  future.  It  is  objected  that  this  instruction  per- 
mits a  recovery  for  future  humiliation  and  embarrassment  of  mind 
and  feelings  because  of  the  loss  of  the  leg.  But  we  find  no  objec- 
tion to  the  charge  as  given  in  this  respect.  The  court  said :  "The 
jury  are  to  consider  mental  suffering,  past  and  future,  found  to  be 
the  necessary  consequence  of  the  loss  of  his  leg."  Where  such 
mental  suffering  is  a  direct  and  necessary  consequence  of  the 
physical  injury,  we  think  the  jury  may  consider  it.  It  is  not  un- 
likely that  the  court  might  have  given  more  ample  instruction  in 
this  respect,  had  it  been  requested  so  to  do.  But  what  was  said 
limited  the  compensation  to  the  direct  consequences  of  the  physical 
injury. 

An  instruction  of  this  character  was  sustained  in  Washington 
&  G.  R.  Co.  v.  Harmon,  147  U.  S.  584,  37  L.  Ed.  289,  13  Sup.  Ct. 
557.  That  there  might  be  more  or  less  continuous  mental  suffer- 
ing directly  resulting  from  a  maiming  of  the  plaintiff's  person  in 
an  injury  of  this  character  was  probable,  and,  where  the  jury  was 
limited  to  that  which  necessarily  resulted  from  the  injury,  we  think 
there  can  be  no  valid  objection  or  just  ground  of  complaint.  Of 
a  charge  of  this  character,  in  Kennon  v.  Gilmer,  131  U.  S.  22,  26, 
33  L.  Ed.  110,  112,  9  Sup.  Ct.  696,  Mr.  Justice  Gray,  speaking  for 
this  court,  said:  "But  the  instruction  given  only  authorized  them, 
in  assessing  damages  for  the  injury  caused  by  the  defendants  to 
the  plaintiff',  to  take  into  consideration  'his  bodily  and  mental  pain 
and  suffering,  both  taken  together'  ('but  not  his  mental  pain 
alone'),  and  such  as  'inevitably  and  necessarily  resulted  from  the 
original  injury.'  The  action  is  for  an  injury  to  the  person  of  an 
intelligent  being,  and  when  the  injury,  whether  caused  by  willful- 
ness or  by  negligence,  produces  mental  as  well  as  bodily  anguish 
and  suffering,  independently  of  any  extraneous  consideration  or 
cause,  it  is  impossible  to  exclude  the  mental  suffering  in  esthnating 
the  extent  of  the  personal  injury  for  which  compensation  is  to  be 
awarded.  The  instruction  was  in  accord  with  the  opinions  of  this 
court  in  similar  cases."  We  find  no  error  in  the  charge  in  this 
respect. 


112  COMPENSATORY  DAMAGES 

As  to  the  alleged  error  in  charging  the  jury  that  damages  could, 
not  be  recovered  in  excess  of  the  sum  claimed  in  the  declaration, 
the  court  was  careful  to  say  to  the  jury  that  the  sum  claimed 
should  not  be  taken  as  a  criterion  to  act  upon,  but  that  it  was  only 
a  limit,  beyond  which  they  could  not  go.  We  cannot  see  how 
the  plaintiff  in  error  was  prejudiced  by  this  instruction.  The  judg- 
ment of  the  Court  of  Appeals  is, affirmed. 


3.  In  Actions  on  Contract 


WRIGHT  V.  BEARDSLEY. 

(Supreme  Court  of  Washington,  1907.     4G  Wash.  16,  S9  Pac.  172.) 

Action  by  Samuel  Wright  and  wife  against  C.  A.  Beardsley  and 
others  to  recover  damages  for  the  improper  burial  of  a  deceased 
child.  There  was  a  verdict  and  judgment  for  plaintiff  for  $2,510, 
and  defendants  appeal. 

Mount,  J.^^  *  *  *  'pl^g  complaint  alleged,  in  substance,  that 
the  plaintiffs  were  husband  and  wife ;  that  the  defendants  were 
copartners  doing  business  as  undertakers  in  the  city  of  Aberdeen ; 
that  on  December  12,  1905,  plaintiffs  lost  their  infant  child,  and 
contracted  with  defendants  to  bury  the  body  in  a  decent,  respect- 
able manner,  according  to  the  usual  customs  and  usage  in  per- 
forming burials ;  that,  in  pursuance  of  the  agreement,  defendants 
took  the  said  body  and  deposited  it  in  a  grave  which  was  then 
used  as  the  grave  of  another  child,  and  left  the  body  in  a  rough 
coffin  without  a  box  and  within  six  inches  of  the  surface  of  the 
ground,  and  on  top  of  the  coffin  of  another  child ;  that  after  said 
pretended  burial,  and  without  knowledge  of  the  manner  of  said 
burial,  plaintiffs  paid  defendants  the  charges  therefor;  that,  by 
reason  of  the  failure  of  defendants  to  perform  their  duties  under 
said  contract,  plaintiffs  have  been  damaged  and  have  been  caused 
to  suffer  great  mental  anguish,  to  their  damage  in  the  sum  of 
$5,000.    The  prayer  was  for  that  amount. 

The  defendants  interposed  a  demurrer  to  this  complaint,  upon 
the  grounds  that  there  was  a  defect  of  parties  plaintiff'  and  de- 
fendant, and  that  the  complaint  fails  to  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  This  demurrer  was  overruled.  Defend- 
ants then  filed  an  answer,  admitting  that  plaintiffs  were  husband 
and  wife,  that  defendants  were  copartners  in  the  undertaking  busi- 
er I'art  of  the  opinion  is  oniittod  and  the  statement  of  facts  is  rewritten. 


ELEMENTS   OF    COMPENSATION — MENTAL   SUFFERING  113 

ness,  and  that  they  entered  into  an  agreement  to  bury  plaintiffs- 
deceased  child,  but  denied  all  the  other  allegations  of  the  com- 
plaint. As  a  separate  defense,  the  defendants  alleged  that  they 
agreed  with  the  plaintiff's  to  furnish  a  certain  coffin  and  bury  the 
body  of  the  infant  cheaply  and  temporarily  in  a  lot  used  for  the 
burial  of  stillborn  infants,  and  that  defendants  fully  and  completely 
performed  the  said  agreement,  and  that  thereafter  the  body  of  said 
infant  was  exhumed  by  plaintiffs,  in  the  presence  of  one  of  the 
defendants,  and,  at  said  time,  with  full  knowledge  of  the  manner 
of  said  burial,  the  plaintiffs  expressed  complete  satisfaction,  and 
the  body  was  thereupon  reinterred  in  the  same  grave. 

At  the  close  of  plaintiff's'  evidence,  the  defendants  moved  for 
a  directed  verdict  upon  the  ground  that  the  evidence  was  insufifi- 
cient  to  sustain  a  judgment.  This  motion  was  denied  by  the  court. 
Thereafter  the  court  instructed  the  jury  to  the  effect  that,  if  the 
jury  found  for  the  plaintiffs,  they  might  award  plaintiffs  actual 
damages  for  mental  sufl'ering.  After  verdict  the  defendants  moved 
for  a  new  trial  upon  the  statutory  grounds.  This  motion  was  also 
denied. 

It  is  first  contended  by  appellants  that  there  is  a  defect  of  par- 
ties plaintiff,  but,  in  view  of  the  allegations  in  the  complaint  and 
the  admissions  in  the  answer  that  the  plaintiffs  are  husband  and 
wife,  and  that  the  defendants  are  copartners,  there  seems  to  be 
no  merit  in  this  contention.  The  persons  who  are  the  lawful 
custodians  of  a  deceased  body  may  maintain  an  action  for  its  des- 
ecration. Dunn  &  Co.  v.  Smith  (Tex.  Civ.  App.)  74  S.  W.  576; 
Koerber  v.  Patek,  102  N.  W.  40,  123  Wis.  453,  68  L.  R.  A.  956. 
The  mother  and  father  certainly  may  join  in  such  an  action. 

The  questions  whether  the  complaint  states  a  cause  of  action, 
whether  the  evidence  was  sufficient  to  go  to  the  jury,  and  whether 
the  court  erred  in  instructing  the  jury  that  damages  might  be 
given  for  mental  anguish  of  the  plaintiffs,  are  all  based  upon  the 
same  contention,  viz.,  that  the  action  is  for  damages  for  a  breach 
of  contract,  and  that  mental  anguish  is  not  a  proper  element  of 
damage  in  such  cases.  These  questions  may  therefore  all  be  con- 
sidered together.  While  it  is  true  that  the  complaint  alleges  that 
a  contract  was  entered  into,  and  that  by  reason  of  the  failure  of 
defendants  to  perform  their  duty  under  the  contract  plaintiff's  have 
been  damaged,  etc.,  still  the  facts  stated  in  the  complaint  and 
testified  to  by  the  plaintiffs  show  that  the  action  is  for  a  wrong 
against  the  feelings  of  the  plaintiffs  inflicted  by  a  wrongful  and 
improper  burial  of  their  dead;  in  other  words,  a  tort  or  injury 
against  the  person.  In  cases  of  this  character,  the  rule  has  frc- 
(juently  been  applied  that  damages  may  be  had  for  mental  suffer- 
ing. Dunn  V.  vSmith,  supra;  Koerber  v.  Patek,  supra;  Larson  v. 
Chase,  47  Minn.  307,  50  N.  W.  238,  14  L.  R.  A.  85,  28  Am.  St. 
CooLKY  Dam. — 8 


114  COMPENSATORY  DAMAGES 

Rep.  370;  Burney  v.  Children's  Hospital,  169  Mass.  57,  47  N.  E. 
401,  38  L.  R.  A.  413,  61  Am.  St.  Rep.  273;  Foley  v.  Phelps,  37 
N.  Y.  Supp.  471,  1  App.  Div.  551. 

In  the  case  of  Koerber  v.  Patek,  supra,  the  court  said:  "Doubt- 
less other  illustrations  might  be  suggested,  but  these  suffice  to 
satisfy  us  that  there  is  neither  solecism  nor  unreason  in  the  view 
that  the  right  of  custody  of  the  corpse  of  a  near  relative  for  the 
purpose  of  paying  the  last  rites  of  respect  and  regard  is  one  of 
those  relative  rights  recognized  by  the  law  as  springing  from 
the  domestic  relation,  and  that  a  willful  or  wrongful  invasion  of 
that  right  is  one  of  those  torts  for  which  damages  for  injury  to 
feelings  are  recoverable  as  an  independent  element.''  In  the  case 
of  Larson  v.  Chase,  supra,  the  court  said :  "Wherever  the  act  com- 
plained of  constitutes  a  violation  of  some  legal  right  of  the  plain- 
tiff, which  always,  in  contemplation  of  law,  causes  injury,  he  is 
entitled  to  recover  all  damages  which  are  the  proximate  and  nat- 
ural consequence  of  the  wrongful  act.  That  mental  suffering  and 
injury  to  the  feelings  would  be  ordinarily  the  natural  and  proxi- 
mate result  of  knowledge  that  the  remains  of  a  deceased  husband 
had  been  mutilated  is  too  plain  to  admit  of  argument." 

It  is  true  that  the  cases  above  quoted  from  are  cases  where  the 
deceased  body  had  been  wrongfully  mutilated,  but  the  principle 
there  discussed  applies  as  well  to  a  case  such  as  the  one  at  bar, 
where  the  wrong  consists  of  the  manner  of -burial.  Dunn  v.  Smith, 
supra.  Where  one  person  agrees  to  give  a  dead  body  decent  burial, 
and  under  such  agreement  obtains  possession  of  the  body,  and 
in  violation  of  his  duty  casts  the  body  by  the  way,  or  wrongfully 
mutilates  it,  or  disposes  of  it,  or  deposits  it  in  a  grave  without 
covering,  in  such  a  manner  as  to  cause  the  relatives  or  persons 
charged  with  its  decent  sepulture  to  naturally  suffer  mental  an- 
guish, it  would  shock  the  sensibilities  to  hold  that  there  was  no 
remedy  for  such  a  wrong.  We  are  therefore  of  the  opinion  that 
the  trial  court  did  not  commit  error  in  overruling  the  demurrer, 
or  in  denying  defendants'  motion  for  a  nonsuit,  or  in  instructing 
the  jury  that  plaintiffs  were  entitled  to  recover  actual  damages 
for  injury  to  the  feelings. 

Appellants  next  contend  that  the  court  erred  in  refusing  the 
motion  for  new  trial.  This  motion  was  based  upon  several  grounds 
which  in  all  probability  will  not  arise  upon  a  new  trial,  and  which 
we  shall  not  therefore  discuss.  We  are  clear  that  this  motion 
should  have  been  sustained,  upon  the  ground  that  the  verdict  was 
excessive,  so  much  so  as  to  show  passion  and  prejudice  on  the 
part  of  the  jury.     *     *     * 

We  are  satisfied  that  a  verdict  for  $2,510  is  entirely  out  of  pro- 
portion to  the  actual  injury  sustained.  It  is  somewhere  between 
five  and  ten  times  more  than  it  ought  to  be,  and  indicates  that 
the  jury,  for  some  reason — no  doubt  in  part  by  the  mother's  tears 


ELEMENTS   OF   COMPENSATION — MENTAL    SUFFERING  115 

— were  induced  by  passion  or  prejudice  to  render  a  verdict  in  the 
nature  of  punitive  damages  against  the  appellants.  The  judgment 
is  therefore  reversed,  and  the  cause  remanded  for  a  new  trial. 


MENTZER  V.  WESTERN  UNION  TEL.  CO. 

(Supreme  Court  of  Iowa,  1S95.     93  Iowa,  752,  G2  N.  W.  1,  28  L.  R.  A.  72, 

57  Am.  St.  Rep.  294.) 

Action  by  J.  D.  Mentzer  against  the  Western  Union  Telegraph 
Company  to  recover  damages  for  the  failure  of  defendant  to  de- 
liver a  telegram  notifying  plaintiff  of  the  death  of  his  mother, 
whereby  he  was  prevented  from  attending  her  funeral.  There 
was  verdict  and  judgment  for  plaintiff  for  $100,  and  defendant 
appeals. 

Deemer,  J.'^  *  *  *  On  the  11th  day  of  April,  1892,  one  H. 
Dorn  delivered  to  the  defendant,  at  Creston,  Ohio,  to  be  trans- 
mitted to  plaintiff,  at  Cedar  Rapids,  Iowa,  the  following  telegraphic 
message:  "Creston,  Ohio,  11,  1892.  To  J.  D.  Mentzer,  Cedar 
Rapids,  Iowa.  Mother  dead.  Funeral  Wednesday.  Answer  if 
coming  or  not.  H.  Dorn."  That  Dorn  paid  the  regular  charges 
for  transmitting  the  same,  and,  at  the  time  of  the  delivery  of  the 
message,  informed  defendant's  employe  in  charge  of  the  office 
at  Creston  that  it  was  plaintiff's  mother  who  was  dead.  That  the 
message  reached  defendant's  office  at  Cedar  Rapids  at  9:16  a.  m., 
April  11,  1892,  but,  through  the  negligence  and  carelessness  of 
defendant's  employes,  was  not  delivered  until  9  p.  m.,  April  13th. 
The  plaintiff  inquired  at  defendant's  office  at  Cedar  Rapids  at  about 
7  o'clock  in  the  evening  of  April  11th,  and  was  informed  there 
was  nothing  there  for  him.  It  is  shown  beyond  dispute  that  plain- 
tiff's mother  died  at  Creston,  Ohio,  on  April  11,  1892,  and  was 
buried  on  the  13th,  and  that,  by  reason  of  the  failure  of  defendant 
to  deliver  the  message  informing  plaintiff  of  her  death,  he  was 
prevented  from  attending  her  funeral.     *     *     * 

We  have,  then,  the  question  as  to  whether  damages  for  mental 
suffering  can  be  recovered  in  actions  of  this  kind,  independent  of 
any  physical  injury,  where  the  company  is  advised  of  the  char- 
acter of  the  message,  and  negligently  fails  to  deliver  it.  This  ques- 
tion has  been  variously  decided  by  the  different  courts  of  the 
country,  but,  up  to  this  time,  is  an  open  one  in  this  state.     *     *     * 

The  general  rule  which  has  come  down  to  us  from  England,  no 
doubt,  is  that  mental  anguish  and  suffering  resulting  from  mere 
negligence,  unaccompanied  with  injuries  to  the  person,  cannot  be 
made  the  basis  of  an  action  for  damages.     See  Lynch  v.  Knight, 

68  Part  of  the  oiiiiiiuu  is  oinitlod  uiid  the  stuteiueiit  of  facts  is  rewritten. 


116  COMPENSATORY   DAMAGES 

9  H.  L.  Cas.  577;  Hobbs  v.  Railroad  Co,  L.  R.  10  Q.  B.  122. 
And  doubtless  this  is  the  rule  of  law  to-day  in  all  ordinary  actions, 
either  ex  contractu  or  ex  delicto.  But  it  must  be  remembered  that 
there  are  exceptions  to  the  rule,  and  that  the  telegraph,  as  a  means 
of  conveying  intelligence,  is  comparatively  a  new  invention.    *   *   * 

Somewhat  akin  is  it  to  a  common  carrier,  in  this:  that  they  are 
both  carriers,  and  must  serve  all  alike;  but  the  carrier  transports 
persons  or  goods,  while  the  telegraph  conveys  intelligence.  The 
very  object  of  the  invention  is  to  quickly  convey  information  from 
one  to  another,  upon  which  that  other  may  act.  It  is  a  public 
use,  and  for  that  reason  eminent  domain  may  be  exercised  in  its 
behalf,  and  is  engaged  in  a  business  affecting  public  interests  to 
such  an  extent  that  the  state  may  regulate  the  charges  of  com- 
panies engaged  in  the  business.  It  is  not  an  insurer  of  the  accu- 
racy or  of  the  delivery  of  messages  intrusted  to  it,  but  it  is  so  far 
a  common  carrier  as  to  be  bound  to  serve  all  people  alike,  and 
to  exercise  due  care  in  the  discharge  of  its  public  duties.  NoV  can 
it  provide  by  contract  for  exemption  from  liability  from  the  con- 
sequences of  its  own  negligence.  Enough  has  been  stated  to  show 
that  it  owes  a  duty  to  all  whom  it  attempts  to  serve,  independent 
of  the  contractual  one  entered  into  when  it  receives  its  messages. 
Telegraph  companies  are  held,  then,  to  the  exercise  of  due  care, 
and  for  negligence,  either  in  sending  or  delivering  messages,  are 
liable  to  any  person  injured  thereby  for  all  the  damages  he  may 
sustain. 

We  have  stated  these  rules  in  order  to  show  that  one  who  is  in- 
jured by  their  neglect  of  duty  may  maintain  an  action,  either  ex  con- 
tractu or  ex  delicto,  for  the  injuries  sustained.  The  rule,  no  doubt, 
is  as  announced  by  Judge  Cooley  in  his  work  on  Torts,  at  page 
104  et  seq. :  "In  many  cases  an  action,  as  for  tort,  or  an  action  for 
a  breach  of  contract,  may  be  brought  by  the  same  party  on  the 
same  state  of  facts.  This  at  first  may  seem  in  contradiction  to  the 
definition  of  a  tort  as  a  wrong  unconnected  with  contract,  but  the 
principles  which  sustain  such  actions  will  enable  us  to  solve  the 
seeming  difficulty.  *  *  *  There  are  also,  in  certain  relations, 
duties  imposed  by  law,  a  failure  to  perform  which  is  regarded  as 
a  tort,  though  the  relations  themselves  may  be  formed  by  con- 
tract covering  the  same  ground.  *  *  *  Thus,  for  breach  of 
the  general  duty  imposed  by  law,  because  of  the  relation  one 
form  of  action  may  be  brought,  and  for  the  breach  of  contract 
another  form  of  action  may  be  brought."     *     *     * 

Under  all  known  rules  of  law,  plaintiff  is  entitled  to  some  dam- 
ages. Defendant  insists  they  are  simply  nominal,  and  plaintiff 
contends  he  has  suffered  acute  and  actual  damages,  for  which  he 
should  be  compensated.  The  general  rule  of  damages  for  breach 
of  contract  comes  down  to  us  from  the  opinion  of  Hadley  v.  Bax- 
endale,  9  Exch.  341.     *     *     * 


ELEMENTS   OF   COMPENSATION — MENTAL   SUFFERING  117 

In  actions  for  tort  the  rule  is  much  broader.  The  universal  and 
cardinal  principle  in  such  cases  is  that  the  person  injured  shall 
receive  compensation  commensurate  with  his  loss  or  injury,  and  no 
more.  This  includes  damages  not  only  for  such  injurious  conse- 
quences as  proceed  immediately  from  the  cause  which  is  the  basis 
of  the  action,  but  consequential  damages  as  well.  These  dam- 
ages are  not  limited  or  affected,  so  far  as  they  are  compensatory, 
by  what  was  in  fact  contemplated  by  the  party  in  fault.  He  who 
is"^  responsible  for  a  negligent  act  must  answer  "for  all  the  injuri- 
ous results  which  flow  therefrom,  by  ordinary,  natural  sequence, 
without  the  interposition  of  any  other  negligent  act  or  overpower- 
ing force."  Whether  the  injurious  consequences  may  have  been 
"reasonably  expected"  to  follow  from  the  commission  of  the  act 
is  not  at  all  determinative  of  the  liability  of  the  person  who  com- 
mitted the  act  to  respond  to  the  person  suft'ering  therefrom.  As 
said  in  Stevens  v.  Dudley,  56  Vt.  158,  "it  is  the  unexpected,  rather 
than  the  expected,  that  happens  in  the  great  majority  of  cases  of 
negligence.'' 

Under  all  the  authorities,  it  was  the  duty  of  the  defendant  to 
transmit  and  deliver  messages  intrusted  to  it  without  unreason- 
able delay;  and,  in  failing  to  do  so,  it  becomes  liable  for  all  dam- 
ages resulting  therefrom.  Cooley,  Torts,  646,  647 ;  Gray,  Commun. 
Tel.  §§  81,  82,  et  seq. ;  Whart.  Neg.  §  767.  That  a  person  is  en- 
titled to  at  least  nominal  damages  for  an  infraction  of  the  duty 
imposed  upon  a  telegraph  company  is  conceded.  And  it  must  also 
be  conceded  that  every  person  desires  to  attend  upon  the  obsequies 
of  his  near  relations.  And  when,  able  and  anxious  to  attend,  he 
is,  through  the  negligence  of  a  telegraph  company,  not  notified  of 
their  death  in  time  to  attend  the  funeral,  he  naturally  and  almost 
inevitably  suffers  mental  pain  and  anguish.  No  man  is  so  de- 
praved but  that  he  yet  remembers  his  mother,  and,  when  able,  will 
pay  her  the  last  respect  that  is  her  due. 

In  the  case  at  bar  it  is  established  that  defendant  knew  the 
nature  of  the  intelligence  it  was  to  transmit,  and  also  knew  that, 
if  it  was  not  delivered  within  a  reasonable  time,  plaintiff  was  like- 
ly to  be  greatly  pained  on  account  not  only  of  not  knowing  of  the 
death  of  his  mother  until  she  was  placed  under  the  ground,  but  also 
because  of  his  inability  to  attend  the  funeral  on  account  of  the  de- 
lay. That  the  defendant  should  reasonably  have  contemplated  such 
results,  under  the  rule  laid  down  in  Hadley  v.  Baxendale,  is  clear. 
But  it  is  insisted  that  damages  for  mental  suffering,  although 
contemplated  by  the  parties,  cannot  be  recovered  for  mere  breach 
of  contract.  That  such  is  the  general  rule  announced  by  the 
courts,  and  that  it  is  the  rule  now  with  reference  to  all  ordinary 
contracts,  must  be  conceded.  But  it  must  he  remembered  that 
this   rule  grew  up   at  a   time  when  there  was  no  thuught  of  the 


118  COMPENSATORY  DAMAGES 

transmission  of  intelligence  by  electricity.  Breaches  of  contract, 
such  as  the  one  in  question,  were  unknown  to  the  common  law. 
The  business  of  telegraphy  has  grown  up  within  comparatively 
recent  years.  But  must  we  say  that  the  law  furnishes  no  rem- 
edy because  no  case  of  the  kind  was  known  to  the  common  law? 
If  so,  such  law  is  no  longer  applicable  to  our  present  conditions. 
Regard  must  be  had,  too,  to  the  subject-matter  of  the  contract. 
The  message  does  not  relate  to  property.  In  such  cases  for  breach 
of  contract  the  law  affords  adequate  compensation.  But  it  does 
relate  to  the  feelings,  the  sensibilities,  aye,  sometimes  even  to  the 
life,  of  the  individual.  It  does  not  affect  his  pocketbook  seriously, 
but  it  does  relate  to  his  feelings,  his  emotions,  his  sensibilities, — 
those  finer  qualities  which  go  to  make  the  man.  Shall  we  say 
that  in  one  case  the  law  affords  compensation,  and  in  the  other  it 
does  not?  Instead  of  goods  which  are  conveyed  by  the  defend- 
ant, it  is  intelligence, — thought.  If  defendant  were  a  common  car- 
rier of  goods,  it  would  be  liable  for  all  dam_ages  sustained  by  rea- 
son of  its  breach  of  contract  to  deliver  them  within  a  reasonable 
time. 

But  it  is  said  no  damages  can  be  recovered  for  failure  to  deliver 
intelligence,  beyond  the  amount  actually  paid  for  the  message,  or 
nominal  damages,  although  the  addressee  may  endure  the  greatest 
of  mental  pangs,  notwithstanding  the  fact  that  such  sufl'ering  was 
in  the  contemplation  of  the  parties  at  the  time  the  contract  was 
made.  Of  course,  every  breach  of  contract  is  likely  to  cause  some 
pain,  but  most  of  these  contracts  relate  to  property  and  pecuniary 
matters,  and  in  such  case  the  law  furnishes  what  has  always  been 
held  to  be  an  adequate  remedy  for  the  pecuniar}^  loss  sustained. 
Mental  suffering  has  never  been  considered  as  within  the  contem- 
plation of  the  parties  at  the  time  the  contract  is  entered  into,  and 
recovery  cannot  be  had  therefor.  But  few  contracts  have  direct 
relation  to  the  feelings  and  sensibilities  of  the  parties  entering  into 
them,  and  the  pain  growing  out  of  the  ordinary  breach  of  con- 
tracts relating  to  property  is  entirely  different  from  that  suffered 
from  a  death  message.     Suth.  Dam.  §  980. 

We  find  a  well-recognized  exception  to  the  general  rule  that 
damages  cannot  be  had  for  mental  anguish  in  cases  of  breach  of 
contract,  in  the  action  for  breach  of  promise  of  marriage,  and  the 
reason  for  this  exception  is  quite  applicable  here.  In  such  cases 
the  defendant,  in  making  his  contract,  is  dealing  with  the  feelings 
and  emotions.  The  contract  relates  almost  wholly  to  the  affec- 
tions, and  one  is  not  allowed  to  so  trifle  with  another's  feelings. 
He  knows  at  the  time  he  makes  the  contract  that  if  he  breaks  it 
the  other  will  suff'er  great  mental  pain,  and  the  courts,  without 
exception,  have  allowed  recovery  in  such  a  case.  See  Holloway  v. 
Griffith,  32  Iowa,  409,  7  Am.  Rep.  2C8;  Royal  v.  Smith,  40  Iowa, 
615. 


ELEMENTS   OF   COMPENSATION — MENTAL   SUFFERING  119 

The  distinction  we  have  pointed  out  is  well  stated  in  1  Suth. 
Dam.  §  92.  Other  exceptions  have  sometimes  been  made,  which 
we  need  not  further  refer  to.  As  said  in  the  case  of  Wadsworth 
V.  Telegraph  Co.,  86  Tenn.  695,  8  S.  W.  574,  6  Am.  St.  Rep.  864: 
"These  illustrations  serve  the  purpose  of  showing  that  in  the 
ordinary  contract  only  pecuniary  benefits  are  contemplated  by  the 
contracting  parties,  and  that,  therefore,  the  damages  resulting 
from  such  breach  of  contract  must  be  measured  by  pecuniary 
standards,  and  that,  where  other  than  pecuniary  benefits  are  con- 
tracted for,  other  than  pecuniary  standards  should  be  applied  in 
the  ascertainment  of  damages  flowing  from  the  breach."  *  *  * 
Reverting  now  to  the  damages  which  may  be  allowed  if  the  ac- 
tion is  treated  as  ex  delicto,  and  to  the  broader  rule  of  damages  in 
cases  of  tort,  we  find  that,  in  very  many  of  these  actions,  dam- 
ages are  recoverable  for  mental  anguish,  some  of  which  we  will 
refer  to  hereafter.  It  is  conceded  by  appellant's  counsel  that  such 
damages  may  in  certain  cases  be  recovered,  but  they  insist  that 
they  are  never  recoverable  unless  accompanied  by  some  physical 
injury.  It  seems  to  us  that,  when  it  is  conceded  that  mental  suf- 
fering may  be  compensated  for  in  actions  of  tort,  the  right  of  plain- 
tiff to  recover  in  this  case  is  established.  Let  us  look  to  some  of 
the  cases  authorizing  recovery  in  such  cases,  and  see  if  there  are 
no  analogies. 

Damages  for  injuries  to  the  feelings  are  given,  though  there 
are  no  physical  injuries,  where  a  person  is  wrongfully  ejected 
from  a  train.  Shepard  v.  Railway  Co.,  17  Iowa,  54,  41  N.  W.  564. 
In  actions  for  slander  and  libel.  Terwilliger  v.  Wands,  17  N.  Y. 
54,  72  Am.  Dec.  420.  For  malicious  prosecution.  Fisher  v.  Ham- 
ilton, '49  Ind.  341.  For  false  imprisonment.  Stewart  v.  Maddox, 
63  Ind.  51.  For  crim.  con.  and  seduction,  and  for  assault.  So 
damages  for  injured  feelings  were  allowed  where  a  conductor 
kissed  a  female  passenger  against  her  will.  Craker  v.  Railway 
Co.,  36  Wis.  657,  17  Am.  Rep.  504.  So  likewise,  it  has  been  held 
that  the  removal  of  the  body  of  a  child  from  the  lot  in  which  it 
was  rightfully  buried,  to  a  charter  plot,  gives  the  parent  a  right  to 
recover  for  injury  to  his  feelings.  Meagher  v.  Driscoll,  99  Mass. 
281,  96  Am.  Dec.  759.  And  a  widow  may  recover  for  such  suf- 
fering and  nervous  shock,  against  the  person  who  unlawfully 
mutilates  the  dead  body  of  her  husband,  although  no  actual  pe- 
cuniary damages  are  alleged  or  proven.  Larson  v.  Chase,  47 
Minn.  307,  50  N.  W.  238,^  14  L.  R.  A.  85,  28  Am.  St.  Rep.  370. 
See,  also,  Suth.  Dam.  §  979,  and  authorities  cited  for  kindred  cases. 
The  wrongs  complained  of  in  these  cases  all  directly  affected 
the  feelings,  and  injury  thereto  proximately  resulted.  lUit  not 
more  so  than  in  the  case  at  bar,  where  the  injury  to  the  feelings 
is  apparent,  and  suffering  necessarily  followed.     This  rule  of  ne- 


120  COMPENSATORY   DAMAGES 

cesrity  applies  where  the  feelings  are  directly  affected  by  the  na- 
ture of  the  wrong  complained  of.  It  has  no  application  to  such 
mental  suffering  as  indirectly  results  from  the  commission  of 
every  tort.     *     *     * 

In  the  quite  recent  case  of  Shepard  v.  Railway  Co.,  77  Iowa,  58, 

41  N.  W.  564,  we  *  *  *  held  that  damages  for  mental  suf- 
fering are  recoverable,  although  there  was  no  physical  pain  or 
injury.  In  that  case  we  said:  "If  these  things  [wounded  feel- 
ings] may  be  considered  in  connection  with  physical  suffering,  in 
estimating  actual  damages,  we  know  no  reason  which  forbids  their 
being  considered  in  the  absence  of  ^physical   suffering.     *     *     *  " 

In  the  case  of  Curtis  v.  Railway  Co.,  87  Iowa,  622,  54  N.  W.  339, 
this  court  squarely  held  that  damages  might  be  recovered  for 
mental  pain  and  suffering,  although  the  damages  for  physical  in- 
jury were  merely  nominal;  and  further  held  that  such  damages 
were  compensatory,  and  not  punitive.  *  *  *  j^  t;he  case  of 
Stone  V.  Railroad  Co.,  47  Iowa,  88,  29  Am.  Rep.  458,  it  was  held 
that  the  action  in  that  case,  owing  to  its  peculiar  facts,  was  an 
action  for  breach  of  contract;  and  that  damages  for  mental  suf- 
fering were  not  recoverable,  and  in  this  case  it  is  said :  "Insult 
and  abuse  accompanying  a  breach  of  contract  cannot  affect  the 
amount  of  recovery  in  such  actions.  If  the  action  is  based  upon 
a  wrong,  the  jury  are  permitted  to  consider  injury  to  feelings,  and 
many  other  matters  which  have  no  place  in  actions  to  recover 
damages  for  breach  of  contracts" — citing  Walsh  v.  Railway  Co., 

42  Wis.  23,  24  Am.  Rep.  376.  It  is  enough  to  say  here  that  the 
action  at  bar  is  ex  delicto,  or  that  damages  may  be  recovered  as  if 
it  were,  under  our  system  of  Code  pleading.     *     *     * 

From  these  cases  it  is  apparent  that  in  actions  of  tort  this  court 
has  frequently  announced  the  rule  that  damages  for  mental  suf- 
fering may  be  recovered,  although  there  is  no  physical  injury. 
And,  if  this  be  so,  why  is  not  this  a  case  where  they  ought  to  be 
allowed?  It  cannot  be  possible  that  here  is  a  legal  wrong  for 
which  the  law  affords  no  remedy.  The  wrong  is  plain,  the  in- 
jury is  apparent,  and  we  think  the  law  affords  a  remedy,  for  com- 
pensatory damages,  under  the  rules  above  given.  It  must  not 
be  understood  to  follow  that,  in  all  actions  ex  delicto,  damages 
for  mental  suffering  may  be  allowed.  There  must  be  some  di- 
rect and  proximate  connection  between  the  wrong  done  and  the 
injury  to  the  feelings,  to  justify  a  recovery  for  mental  anguish. 
But,  when  there  is  this  connection  so  manifest  as  in  the  case  at 
bar,  we  think  such  damages  ought  to  be  allowed.  It  is  very  ap- 
propriately said,  however,  in  one  of  the  cases  which  has  been  cited, 
that  "great  caution  should  be  used  in  the  trial  of  cases  like  this, 
as  it  will  be  so  easy  and  natural  to  confound  the  corroding  grief 
occasioned  by  the  loss  of  a  parent  or  other  relative  with  the  dis- 
appointment and  regret  occasioned  by  the  fault  cr  neglect  of  the 


ELEMENTS   OF   COMPENSATIOX — MRNTAL   SUFFERING  121 

company,  for  it  is  only  the  latter  for  which  recovery  may  be  had ; 
and  the  attention  of  juries  might  well  be  directed  to  this  fact." 

It  is  not  necessary  for  us  to  determine  On  which  theory  damages 
for  mental  anguish  are  recoverable.  If  we  find  they  are  recover- 
able, either  in  an  action  for  breach  of  contract,  or  by  reason  of  a 
breach  of  public  duty,  then  the  instruction  given  by  the  lower 
court  was  correct,  and  should  be  sustained.  It  will  be  noticed 
that,  in  some  of  the  cases  holding  to  a  contrary  doctrine  from  that 
here  announced,  recovery  was  denied  because  of  the  form  of  the 
action;  that  is  to  say,  it  was  held  that  the  action  in  the  .particu- 
lar case  was  for  breach  of  contract,  and  that  damages  for  mental 
suffering  were  not  recoverable  in  such  an  action.  Whether  they 
would  be  recoverable  in  actions  ex  delicto  or  not  was  not  deter- 
mined. Let  us  look  for  a  moment  to  some  of  the  objections  urged 
to  such  a  rule  as  we  have  announced. 

First.  It  is  said  that  such  suffering  is  speculative  and  remote. 
We  have,  as  we  think,  answered  this  by  showing  that  in  actions 
of  this  kind  it  is  direct  and  proximate  to  the  wrong  complained  of. 

Second.  It  is  urged  that  such  damages  are  sentimental,  are 
vague  and  shadowy,  and  that  there  is  no  standard  by  which  an 
injury  can  be  justly  compensated  or  approximately  measured. 
This  objection  is  answered  if  we  find  any  case  in  which  such  dam- 
ages are  allowed,  for  if  they  may  be  allowed  in  one  kind  of  case 
they  may  in  all,  so  far  as  this  objection  is  concerned.  We  have 
already  seen  numbers  of  cases,  both  from  this  and  other  states, 
wherein  it  is  held  that  damages  for  mental  suffering,  independent 
of  physical  injury,  may  be  recovered.  It  is  conceded  by  counsel 
that  damages  can  be  recovered  for  mental  suffering  when  accom- 
panied by  physical  pain  or  bodily  suffering.  If  this  be  true,  then 
let  us  ask  how  they  can  be  any  more  accurately  measured  when 
so  accompanied  than  when  not.  When  it  is  once  conceded  that 
mental  anguish  can  be  considered,  and  compensation  made  there- 
for, then  the  objection  last  urged  falls  to  the  ground. 

Third.  It  is  said  there  is  no  principle  on  which  such  damages 
can  be  recovered.  We  have  endeavored  to  show,  to  the  best  of 
our  ability,  that  there  is  abundant  authority  to  justify  a  recovery 
in  such  cases. 

Fourth.  It  is  contended  that  the  rule  opens  up  a  vast  and  fruit- 
ful field  for  speculative  litigation.  We  have  endeavored  to  so 
guard  and  limit  the  rule  that  there  may  be  no  mistaking  its  oper- 
ation and  effect.  If  recovery  is  for  breach  of  the  contract,  then 
it  can  only  be  had  because  of  the  subject-matter — the  fact  that  it 
is  intelligence  that  is  transmitted,  and  the  feelings  only  aft'ected. 
And,  if  the  recovery  is  had  because  it  is  a  tort,  then  a  somewhat 
similar  limitation  is  made,  which  we  have  tried  to  make  apparent. 
If,  as  thus  limited,  the  rule  opens  up  a  vast  and  fruitful  field  of 
litigation,  it  is  only  because  tclcgrai)h  cumpanies  fail  to  do  their 


122  COMPENSATORY   DAMAGES 

duty.  We  cannot  think  that  a  rule  which  will  tend  to  make  tele- 
graph companies  more  careful  in  the  matter  of  delivering  their 
messages  will  be  fraught  with  such  fearful  results  as  counsel 
imagine.  The  single,  plain  duty  of  a  telegraph  company  is  to 
make  transmission  and  delivery  of  messages  intrusted  to  it  with 
promptitude  and  accuracy.  When  that  is  done  its  responsibility 
is  ended.  When  it  is  omitted,  through  negligence,  the  company 
should  answer  for  all  injury  resulting,  whether  to  the  feelings  or 
the  purse,  one  or  both,  subject  to  the  proviso  that  the  injury  must 
be  the  natural  and  direct  consequence  of  the  negligent  act.  We 
cannot  conceive  of  any  danger  in  such  a  rule.  It  seems  to  us  to 
be  in  accord  with  the  enlightened  spirit  of  modern  jurisprudence, 
and  that  in  actual  practice  no  evil  can  result  therefrom.  Juries 
may  be  prone,  in  cases  of  this  kind,  to  place  their  estimates  high ; 
but  the  judge  is  ever  present,  with  a  restraining  power,  ample  to 
prevent  unconscionable  and  unjust  verdicts.  *  *  *  The  judg- 
ment is  affirmed.^® 


SUMMERFIELD  v,  WESTERN  UNION  TEL,  GO. 

(Supreme  Court  of  Wisconsin,  1894.     87  Wis.  1,  57  N.  W.  973,  41  Am.  St 

Rep.  17.) 

Action  by  Fred  G.  Summerfield  against  the  Western  Union  Tel- 
egraph Company  for  damages  for  delay  in  transmitting  a  mes- 
sage. Plaintiff  resided  on  a  farm  about  10  miles  from  the  village 
of  Iron  River,  Wis.  His  mother  lived  at  Lisbon,  N,  D,,  with  plain- 
tiff's brother  J,  W.  Summerfield,  Defendant  had  an  ofHce  at 
each  of  these  places,  October  23,  1892,  J.  W.  Summerfield  left 
at  defendant's  office  at  Lisbon  a  message  addressed  to  plaintiff, 
care  of  Burt  Clark,  Iron  River,  reading  as  follows:  "Mother  is 
dying.  Come  immediately.  J.  W.  Summerfield."  The  message 
was  negligently  delayed,  and  was  not  delivered  to  Clark  until 
October  28,  1892,  and  plaintiff  did  not  receive  it  until  after  noon 
of  that  day.  Plaintiff's  mother  died  on  the  26th  day  of  October. 
Plaintiff  claimed  that  he  would  have  gone  to  his  mother's  bedside 
had  he  received  the  telegram  in  due  time,  and  that,  by  reason  of 
his  failing  to  receive  the  message  until  after  his  mother's  death, 
he  was  deeply  "mortified,  grieved,  hurt,  and  shocked,  and  suffered 
intense  anguish  of  body  and  mind,  and  was  thereby  thrown  into 
a  state  of  nervous  excitement  and  tremor,  which  rendered  him 
sick,  and  impaired  his  health  and  strength,  and  that  he  still  suf- 
fers from  the  effect  of  the  same."  Upon  the  trial,  objection  was 
made  to  the  reception  of  any   evidence  under  the  complaint,  be- 

69 Accord:  Foreman  v.  Western  Union  Tel,  Co,,  1-41  Iowa,  32,  116  N.  W, 
724,  19  L.  R.  A.  (N.  S.)  374  (1909). 


ELEMENTS    OF    COMPENSATION — MENTAL   SUFFERING  123 

cause  it  did  not  state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion, which  objection  was  overruled,  and  exception  was  taken. 

The  court  charged  the  jury,  among  other  things,  as  follows: 
"If  you  find  that  the  message,  in  the  exercise  of  ordinary  diligence, 
considering  all  the  circumstances  of  the  case,  was  unreasonably 
delayed,  and  that,  if  it  had  been  delivered  with  reasonable  prompt- 
ness, the  plaintiff  could  and  would  have  responded  thereto,  and 
reached  his  mother  before  her  death,  and  that  plaintiff  suffered 
mental  pain  from  a  sense  of  disappointment,  sorrow,  chagrin,  or 
grief  at  being-  deprived  of  being  at  his  mother^s  deathbed,  your 
verdict  should  be  for  the  plaintiff  in  such  sum  as  will  fairly  com- 
pensate him  for  his  mental  suffering  and  damages,  if  any,  to  his 
nervous  system,  caused  by  the  shock  of  such  mental  suft'ering." 
A  verdict  for  the  plaintiff  for  $652.50  was  rendered,  and,  from  judg- 
ment thereon,  defendant  appealed. "^"^ 

WiNSLOW,  J.  The  exact  question  presented  by  the  instruction 
of  the  court  to  the  jury  is  whether  mental  anguish  alone,  result- 
ing from  the  negligent  nondelivery  of  a  telegram,  constitutes  an 
independent  basis  for  damages.  At  common  law  it  was  well  set- 
tled that  mere  injury  to  the  feelings  or  affections  did  not  con- 
stitute an  independent  basis  for  the  recovery  of  damages.  Coo- 
ley,  Torts,  271;  Wood's  Mayne,  Dam.  (1st  Amer.  Ed.)  §  54,  note 
1.  It  is  true  that  damages  for  mental  suffering  have  been  gen- 
erally allowed  by  the  courts  in  certain  classes  of  cases.  These 
classes  are  well  stated  by  Cooper,  J.,  in  his  learned  opinion  in  the 
case  of  Telegraph  Co.  v.  Rogers,  68  Miss.  775,  9  South.  823,  13 
L.  R.  A.  859,  24  Am.  St.  Rep.  300,  as  follows:  "(1)  Where,  by 
the  merely  negligent  act  of  the  defendant,  physical  injury  has  been 
sustained;  and  in  this  class  of  cases  they  are  compensatory,  and 
the  reason  given  for  their  allowance  is  that  the  one  cannot  be 
separated  from  the  other.  (2)  In  actions  for  breach  of  the  con- 
tract of  marriage.  (3)  In  cases  of  willful  wrong,  especially  those 
affecting  the  liberty,  character,  reputation,  personal  security,  or 
domestic  relations  of  the  injured  party."  To  this  latter  class  be- 
long the  actions  of  malicious  prosecution,  slander  and  libel,  and 
seduction,  and  they  contain  an  element  of  malice. 

Subject  to  the  possible  exceptions  contained  in  the  second  and 
third  of  the  above  classes,  it  is  not  believed  that  there  was  any 
case — certainly  no  well-considered  case — prior  to  the  year  1881, 
which  held  that  mental  anguish  alone  constituted  a  sufficient  basis 
for  the  recovery  of  damages.  In  that  year,  however,  the  supreme 
court  of  Texas,  in  So  Relle  v.  Telegraph  Co.,  55  Tex.  308,  40  Am. 
Rep.  805,  decided  that  mental  suffering  alone,  caused  by  failure 
to  deliver  such  a  telegram  as  the  one  in  the  present  case,  was 
sufficient  basis  for  damages.     The  principle  of  this  case  has  been 

00  The  stateiiieut  of  facts  is  rcwritlca. 


124  COMPENSATORY   DAMAGES 

followed  with  some  variations,  by  the  same  court,  in  many  cases 
since  that  decision,  and  its  reasoning  has  been  substantially 
adopted  by  the  courts  of  last  resort  in  the  states  of  Indiana,  Ken- 
tucky, Tennessee,  North  Carolina,  and  Alabama,  in  cases  which 
are  cited  in  the  briefs  of  counsel.  On  the  other  hand,  the  doc- 
trine has  been  vigorously  denied  by  the  highest  courts  in  the 
states  of  Georgia,  Florida,  Mississippi,  Missouri,  Kansas,  and  Da- 
kota, and  by  practically  the  unanimous  current  of  authority  in  the 
federal  courts.  All  of  these  cases  will  be  preserved  in  the  report 
of  this  case,  and  the  citations  need  not  be  repeated  here. 

The  question  is  substantially  a  new  one  in  this  state,  and  we  are 
at  liberty  to  adopt  that  rule  which  best  commends  itself  to  rea- 
son and  justice.  It  is  true  that  it  has  been  held  by  this  court,  in 
Walsh  V.  Railway  Co.,  42  Wis.  32,  24  Am.  Rep.  376,  that,  in  an 
action  upon  breach  of  a  contract  of  carriage,  damages  were  not 
recoverable  for  mere  mental  distress ;  but,  as  we  regard  this  ac- 
tion as  being  in  the  nature  of  a  tort  action,  founded  upon  a  neg- 
lect of  the  duty  which  the  telegraph  company  owed  to  the  plain- 
tiff to  deliver  the  telegram  seasonably,  that  decision  is  not  con- 
trolling in  this  case.  The  reasoning  in  favor  of  the  recovery  of 
such  damages  is,  in  brief,  that  a  wrong  has  been  committed  by  de- 
fendant which  has  resulted  in  injury  to  the  plaintiff  as  grievous 
as  any  bodily  injury  could  be,  and  that  the  plaintiff  should  have 
a  remedy  therefor.  On  the  other  hand,  the  argument  is  that  such 
a  doctrine  is  an  innovation  upon  long-established  and  well-under- 
stood principles  of  law;  that  the  difficulty  of  estimating  the  proper 
pecuniary  compensation  for  mental  distress  is  so  great,  its  ele- 
ments so  vague,  shadowy,  and  easily  simulated,  and  the  new  field 
of  litigation  thus  opened  up  so  vast,  that  the  courts  should  not 
establish  such  a  rule. 

Regarding,  as  we  do,  the  Texas  rule  as  a  clear  innovation  upon 
the  law  as  it  previously  existed,  we  shall  decline  to  follow  it,  and 
shall  adopt  the  other  view,  namely,  that  for  mental  distress  alone, 
in,  such  a  case  as  the  present,  damages  are  not  recoverable.  The 
subject  has  been  so  fully  and  ably  discussed  in  opinions  very  re- 
cently delivered  that  no  very  extended  discussion  will  be  at- 
tempted here.  We  refer  specially  to  the  opinions  in  Telegraph 
Co.  V.  Rogers,  68  Miss.  775,  9  South.  823,  13  L.  R.  A.  859,  24  Am. 
St.  Rep.  3C0;  Council  v.  Telegraph  Co.,  116  Mo.  34,  22  S.  W.  345, 
20  L.  R.  A.  172,  38  Am.  St.  Rep.  575 ;  Telegraph  Co.  v.  Wood,  57 
Fed.  471,  6  C.  C.  A.'  432,  21  L.  R.  A.  706.  See,  also.  Judge  Lur- 
ton's  dissenting  opinion  in  Wadsworth  v.  Telegraph  Co.,  86  Tenn. 
695,  8  S.  W.  574,  6  Am.  St.  Rep.  864.  In  the  last-named  opinion 
the  following  very  apt  remarks  are  made:  "The  reason  why  an 
independent  action  for  such  damages  cannot  and  ought  not  to  be 
sustained  is  found  in  the  remoteness  of  such  damages,  and  in  the 
metaphysical  character  of  such  an  injury,  considered  apart  from 


ELEMENTS   OF   COMPENSATION— MENTAL    SUFFERING  125 

physical  pain.  Such  injuries  are  generally  more  sentimental  than 
substantial.  Depending  largely  on  physical  and  nervous  condi- 
tions, the  suffering  of  one  under  precisely  the  same  circumstances 
would  be  no  test  of  the  suft-ering  of  another.  Vague  and  shadowy, 
there  is  no  possible  standard  by  which  such  an  injury  can  be 
iustlv  compensated,  or  even  approximately  measured.  Easily  sim- 
ulated and  impossible  to  disprove,  it  falls  withm  all  of  t^e  objec- 
tions to  speculative  damages,  which  are  universally  excluded  be- 
cause of  their  uncertain  character." 

Another  consideration  which   is,  perhaps,  of  equal  importance, 
consists  in  the  great  field  for  litigation  which  would  be  opened  by 
the  logical  application  of  such  a  rule  of  damages.     If  a  jury  must 
measure  the  mental  suffering  occasioned  by  the  failure  to  deliver 
this  telegram,  must  they  not  also  measure  the  vexation  and  griet 
arisino-  from  a  failure  to  receive  an  invitation  to  a  ball  or  a  i  hanks- 
diving  dinner?     Must  not  the  mortification  and  chagrin  caused  by 
?he  public   use   of  opprobrious  language  be  assuaged  by   money 
damao-es'     Must   not   every  wrongful   act   which   causes   pam   or 
grief  or  vexation  to  another  be  measured  in  dollars  and  cents. 
Surely  a  court  should  be  slow  to  open  so  vast  a  field  as  this  with- 
out cogent  and  overpowering  reasons.     For  ourselves  we  see  no 
such  reasons.     We  adopt  the  language  of  Gantt,  P.  J.,  m  Connell 
V    Telegraph  Co.,  supra:    "We  prefer  to  travel  yet  awhile  super 
antiquaJ  vias.     If,  in  the  evolution  of  society  and  the  law,  this  in- 
novation should  be  deemed  necessary,  the  legislature  can  be  safe- 
ly trusted  to  introduce  it,  with  those  limitations  and  safeguards 
which  will  be  absolutely  necessary,  judging  from  the  variety  of 
cases  that  have  sprung  up  since  the  promulgation  of  the    lexas 

03.SG 

It"  was   argued  that  under  chapter   171,   Laws    1885,    (Sanb.  & 
B    Ann    St.  §  1770b,)  damages  for  injuries  to  feelings  alone  might 
be  recovered.     This  law  provides  that  telegraph  companies  shall 
be  liable  for  all  damages  occasioned  by  failure  or  negligence  of 
their  operators,  servants,  or  employes  in  receiving,  copying,  trans- 
mitting, or  delivering  dispatches  or  messages.     We  cannot  regard 
this  statute  as  creating,  or  intended  to  create,  in  any  way,  new 
elements   of   damage.     Whether   its   purpose  was   to   obviate  the 
difficulties  which  were  held  fatal  to  a  recovery  in  the  case  of  Can- 
dee  V.  Telegraph  Co.,  34  Wis.  471,  17  Am.  Rep.  452,  or  to  effect 
some  other  object,  is  not  a  question  which  now  arises;    but  it 
seems  clear  to  us  that,  had  a  radical  change  in  the  law  relating 
to  the  kinds  of  suffering  which  should  furnish  a,  ground  of  dam- 
ao-es  been   contemplated,  the  act  would  have  expressed  that  in- 
tention in  some  unmistakable  way.     We  see  nothing  in  the  law 
to  indicate  such  intention. 

Finally,  it  is  said  that  verdicts  for  injuries  to  the  feelings  alone 
have   becli   sustained   in   this   court,  and   the  following  cases  are 


126  COMPENSATORY  DAMAGES 

cited:  Wightman  v.  Railway  Co.,  7Z  Wis.  169.  40  N.  W.  689,  2 
L.  R.  A.  185,  9  Am.  St.  Rep.  778 ;  Craker  v.  Railway  Co.,  36  Wis. 
657,  17  Am.  Rep.  504;  Draper  v.  Baker,  61  Wis.  450,  21  N.  W. 
527,  50  Am.  Rep.  143.  Without  reviewing  these  cases  in  detail, 
it  is  sufficient  to  say  that  there  was  in  all  of  them  the  element  of 
injury  or  discomfort  to  the  person,  resulting  either  from  actual 
or  threatened  force,  and  they  cannot  be  relied  upon  as  precedents 
for  the  allowance  of  damages  for  mental  sufferings  alone. 

It  follows  from  these  views  that  the  instruction  excepted  to  was 
erroneous.  Judgment  reversed,  and  action  remanded  for  a  new 
trial.«^ 


X.  Aggravation  and  Mitigation  of  Damages 


FARRAND  v.  ALDRICH. 
(Supreme  Court  of  Michigan,  1891.     85  Mich.  593,  48  N.  W.  628). 

Action  for  libel.  The  libelous  article  which  charged  the  plain- 
tiff with  gross  immorality  was  published  in  a  newspaper  owned 
and  published  by  defendants.  There  was  verdict  and  judgment 
for  plaintiff  for  $1,000.     Defendants  bring  error. 

Grant,  J.^^  *  *  *  ^^^^  j^j.^  ^gj-e  instructed  upon  the  meas- 
ure of  damages  that  plaintiff  was  entitled  to  recover  for  injury 
to  her  feelings,  character,  and  reputation  ;  for  humiliation,  shame, 
and  disgrace  which  the  publication  brought  upon  her ;  and  for  ill- 
ness of  body  and  worry  of  mind.  Defendants  insist  that  the  jury 
having  acquitted  the  defendants  of  malice,  and  therefore  of  will- 
fulness in  the  publication,  mental  suffering  is  not  an  element  of 
actual  damage.  If  this  were  the  rule,  one  of  the  principal  ele- 
ments of  damage  would  be  excluded.  If  a  virtuous  young  woman 
is  entitled  to  no  consideration  for  her  injured  feelings  when  she 
has  been  publicly  charged  with  the  grossest  immorality,  courts 
might  as  well  deny  her  a  cause  of  action.  Nor  do  we  think  it  was 
error  to  charge  the  jury  that  they  might  consider  the  effect  that 
such  a  publication  would  have  upon  her  in  the  future.  Judgment 
affirmed.     The  other  justices  concurred.®* 

«i  See  Western  Union  Tel.  Co.  v,  Ferguson,  157  Ind.  64.  60  N.  E.  674,  1080, 
54  L-.  R.  A.  846  (1901),  wherein  the  Supreme  Court  of  Indiana,  after  review- 
ing the  cases,  repudiates  the  doctrine  that  damages  for  mental  suifering  can 
be  recovered  in  actions  for  deL-iy  in  the  delivery  of  telegrams. 

62  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  42. 

«3  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 

64Aggravation  of  damages  in  actions  for  breach  of  marriage  promise,  see 
Osmun  V.  Winters,  post,  p.  274. 


AGGRAVATION    AND    MITIGATION    OF    DAMAGES  127 

GRONAN  V.  KUKKUCK. 
(Supreme  Court  of  Iowa,  1SS2.     59  Iowa,  18.  12  N.   W.  74S.) 

Action  to  recover  damag^es  sustained  by  reason  of  an  assault  and 
battery  committed  by  defendants  upon  the  plaintiff.  There  was 
a  verdict  and  judgment  for  plaintifif.     Defendants  appeal. 

Beck,  J.«^  The  petition  charges  that  the  assault  and  battery  were 
committed  by  both  of  the  defendants,  but  the  evidence  shows  that 
violence  was^  used  by  Henry  Kukkuck  alone,  and  that  the  other 
defendant,  his  father,  was  present,  encouraging  the  son  and  in- 
stigating the  assault.  The  answer  of  the  son  pleads,  as  justifica- 
tion, that  plaintifif,  in  the  son's  presence,  pronounced  a  statement 
then  made  by  the  father  a  lie.     *     *     * 

The  court  directed  the  jury  that  no  words  used  by  plaintiff 
would  justify  the  assault,  but  words  of  provocation  used  just  be- 
fore and  at  the  time  of  the  assault  should  be  considered  in  mitiga- 
tion of  exemplary  damages,  and  added  to  the  instruction  the  fol- 
lowing words:  "But  no  words  used  by  plaintiff  to  the  defendants 
or  either  of  them  before  the  day  of  assault,  or  which  came  to  their 
knowledge  before  that  time,  should  be  considered  by  you  for  any 
purpose."  Provocation  given  at  the  time  of  the  assault,  or  within 
a  prior  time  so  recent  as  to  justify  the  presumption  that  the  of- 
fence was  committed  under  the  influence  of  passion  excited  there- 
by, may  be  shown  in  mitigation  of  damages.  But  if  time  for  re- 
flection intervened  after  the  provocation,  it  will  not  extenuate  the 
violence.  This  is  the  settled  rule  of  this  state.  Thrall  v.  Knapp, 
17  Iowa,  468;  Ireland  v.  Elliott,  5  Iowa,  478,  68  Am.  Dec.  715. 
A  provocation  arising  on  a  day  prior  to  the  assault  cannot  be 
shown  in  mitigation  of  damages,  for  the  law  presumes  sufficient 
time  intervened  before  the  assault  to  allow  the  passions  to  sub- 
side and  reason  to  regain  control  of  the  mind.  The  doctrine  of 
the  instruction  sustains  the  ruling  of  the  circuit  court  in  excluding 
evidence  of  conversations  and  declarations  of  the  plaintiff,  al- 
leged to  have  occurred  prior  to  the  day  of  the  assault,  which  were 
offered  in  extenuation  thereof. 

The  court  directed  that  mental  pain  suffered  by  the  plaintiff 
should  be  considered  by  them  as  an  element  of  damages.  Counsel 
for  defendant  insisted  that,  as  there  is  no  allegation  and  claim  in 
the  petition  based  upon  mental  pain  suffered  by  plaintiff,  he  can- 
not recover  therefor  in  this  action.  But  as  mental  pain  is  the 
natural  and  inevitable  result  of  personal  injuries,  damages  therefor 
need  not  be  specially  claimed.     *     *     * 

An  instruction  was  asked  by  the  son  to  the  effect  that  the  denial 
of  plaintiff  that  he  had  made  statements  derogatory  to  the  char- 

80  I'uit  of   Ibe  uiJiuiou  is  oiuiLlcd. 


128  COMPENSATORY   DAMAGES 

acter  of  defendant,  whereby  defendant  was  greatly  provoked,  should 
be  considered  in  mitigation  of  damages.  It  seems  to  tis  that  the 
fact  assumed  by  the  instruction,  instead  of  extenuating  defend- 
ant's assault,  adds  to  the  wrong.  Surely  the  denial  of  the  words 
ought  to  have  the  efifect  of  abating  defendant's  feeling  instead  of 
exciting  him  to  violence.  *  *  *  It  is  our  opinion  that  the 
judgment  of  the  circuit  court  ought  to  be  affirmed. 


XI.  Reduction  of  Loss  "^^ 


NASHVILLE,  C.  &  ST.  L.  RY.  v.  MILLER. 

{Supreme  Court  of  Georgia,  1904.     120  Ga.  453,  47  S.  E.  9o9,  GT  L.  R.  A.  87.) 

Action  by  J.  T.  Miller  against  the  Nashville,  Chattanooga  & 
St.  Louis  Railway.  There  was  judgment  for  plaintiff,  and  de- 
fendant brings  error. 

Cobb,  J."  Miller  was  a  railway  mail  clerk,  and  received  in- 
juries as  the  result  of  a  collision  between  the  train  upon  which  he 
was  working  and  another  train.  He  brought  his  action  for  dam- 
ages against  the  raihvay  company,  and  at  the  trial  it  was  con- 
ceded that  he  was  entitled  to  recover;  the  sole  issue  in  the  case 
being  as  to  the  amount  of  damages  which  should  be  awarded  him. 
The  jury  returned  a  verdict  for  $4,000.  The  defendant  made  a 
motion  for  a  new  trial  upon  numerous  grounds,  and  complains  that 
the  court  erred  in  overruling  the  same. 

Error  is  assigned  upon  the  following  charge:  "It  is  immaterial 
whether  the  government  paid  the  plaintiff  anything  or  not.  That 
would  not  affect  the  rights  of  the  plaintiff'  in  this  case  to  recover 
against  the  railroad  company."  Error  is  further  assigned  upon 
the  refusal  of  the  judge  to  give  in  charge  a  written  request  which 
was  as  follows:  "Plaintiff"  admits  in  his  testimony  that  he  re- 
ceived from  the  government  his  regular  salary  during  the  time 
he  did  not  work  on  account  of  his  injury.  This  being  so,  I  charge 
you  that  he  cannot  recover  anything  on  this  account  for  time 
lost,  as  claimed  in  his  declaration." 

King,  an  assistant  division  railway  mail  superintendent,  testi- 
fied as  follows:  Plaintiff  "returned  to  work  about  June  10,  1903 — 
about  the  time  his  year  expired.  If  he  had  not  gone  back  to  work 
he  would  have  been  granted  further  time,  but  his  pay  would  have 
stopped.     The  government  pays  them  for  one  year  when  they  are 

66  For  discussion  of  principles,  see  Hale  ou  Damages  (2(1  Ed.)  §§  43-45. 

67  Part  of  tbe  opinion  is  omitted. 


REDUCTION    OF    LOSS  129 

disabled  from  work.  This  is  done  on  physician's  certificate  for 
no  i^eriod  longer  than  sixty  days  consecutively,  and  not  to  ex- 
ceed one  year  in  total."  The  amount  thus  received  by  the  plain- 
tiff' was  $1,400. 

While  the  statute  or  regulation  of  the  Post-Ofiice  Department 
under  which  this  payment  was  made  does  not  appear  in  the  record, 
nor  is  it  cited  in  the  briefs  of  counsel,  the  payment  was  evidently 
made  under  the  provisions  of  section  1424  of  the  postal  laws  and 
regulations,  which  reads  as  follows:  "Whenever  a  railway  postal 
clerk  shall  be  disabled  while  in  the  actual  discharge  of  his  duties 
by  a  railroad  or  other  accident  beyond  his  power  to  control,  he 
shall  send  to  the  division  superintendent  a  certificate  of  his  at- 
tending physician  or  surgeon,  sworn  to  before  an  officer  author- 
ized to  administer  oaths,  who  has  an  official  seal,  setting  forth 
the  nature,  extent,  and  cause  of  his  disability,  and  the  probable 
duration  of  the  same;  and  such  further  evidence  as  to  the  char- 
acter of  the  disability  as  may  be  necessary  shall  be  furnished. 
The  division  superintendent  will  forward  the  certificate,  with  his 
recommendation,  to  the  general  superintendent  of  the  railway  mail 
service,  who  will  submit  the  matter  to  the  Postmaster-General, 
who  may,  in  his  judgment,  the  facts  justifying  such  action,  grant 
such  disabled  clerk  leave  of  absence  with  pay  for  periods  of  not 
exceeding  sixty  days  each,  and  not  exceeding  one  year  in  all." 

In  considering  whether  the  assignments  of  error  under  con- 
sideration are  well  taken,  it  is  necessary  to  determine  whether  the 
payment  referred  to  in  the  testimony  was  of  such  a  character  as 
to  preclude  the  plaintiff  from  claiming  compensation  for  lost  time 
against  the  railway  company.  When  one  engaged  in  any  calling 
or  avocation  from  which  he  derives  a  pecuniary  benefit  is  com- 
pelled to  give  up  for  a  time  the  performance  of  his  duties,  as  the 
result  of  an  injury  inflicted  upon  him  by  a  wrongdoer,  he  is  en- 
titled, as  a  general  rule,  to  demand  compensation  for  the  time  thus 
lost  at  the  hands  of  the  wrongdoer  who  inflicted  the  injury.  The 
general  rule  is  that,  where  a  wrongdoer  causes  time  to  be  lost,  he 
will  not  be  heard  to  say  that  the  person  injured  has  suffered  no 
pecuniary  loss,  because  he  has  received,  as  a  direct  result  of  being 
injured,  contributions  which  in  amount  aggregate  more  than  what 
would  have  been  earned  during  the  time;  nor  will  his  liability  be 
diminished  to  the  extent  of  contributions  which  were  less  than 
what  would  have  been  earned.  If,  from  motives  of  affection,  phil- 
anthropy, or  as  the  result  of  a  contract,  the  plaintiff  has  received 
from  one  other  than  his  employer  any  sums,  the  reception  of 
which  are  directly  attributable  to  the  fact  that  he  has  been  injured, 
the  person  causing  the  injury  will  not  be  allowed  to  urge  tlie  pay- 
ment of  such  sums  in  mitigation  of  the  damages  claimed  against 
him.  Thus,  it  has  been  held  that  the  damages  will  nut  bo  reduced 
CooLEY  Dam. — 9 


130  COMPENSATORY  DAMAGES 

by  an}^  amount  of  insurance  received  in  consequence  of  the  wrong- 
doer's act.  See  Western  &  Atlantic  Railroad  v.  ]\Ieigs,  74  Ga.  857 
(5)  ;  Cunningham  v.  R.  Co.,  102  Ind.  478,  1  N.  E.  800,  52  Am. 
Rep.  683.  Nor  will  the  fact  that  medical  attention  and  nursing 
have  been  rendered  gratuitously  preclude  the  injured  party  frOm 
recovering  the  value  of  such  services  (Brosnan  v.  Sweetser,  127 
Ind.  1,  26  N.  E.  555;  Pennsylvania  Co.  v.  Marion,  104  Ind.  239, 
3  N.  E.  874;  Varnham  v.  Council  Bluffs,  52  Iowa,  698,  3  N.  W. 
792),  though  it  has  been  held  that  no  recovery  can  be  had  for  the 
value  of  services  of  this  character  rendered  by  members  of  the 
family,  unless  an  agreement  to  pay  for  them  be  shown  (Goodhart 
V.  R.  Co.,  177  Pa.  1,  35  Atl.  191,  55  Am,  St.  Rep.  705). 

Ought  the  rule  to  be  different  where  the  employer,  from  mo- 
tives of  humanity,  sympathy,  business  interest,  and  the  like,  pays 
to  the  injured  employe,  as  a  mere  gratuity,  for  a  given  time,  an 
amount  which  he  would  have  been  authorized  to  demand  if  he 
had  performed  the  services  of  his  employment,  but  which  he  had 
no  right  to  demand  unless  the  services  were  performed?  In 
Texas  it  has  been  held  that  an  amount  paid  by  an  employer, 
whether  paid  as  the  result  of  a  direct  undertaking  or  as  a  mere 
gratuity,  cannot  be  pleaded  in  mitigation  of  damages.  Missouri 
Ry.  Co.  V.  Jarrard,  65  Tex.  560.  In  an  Indiana  Case  the  same  rule 
was  laid  down,  though  it  does  not  appear  distinctly  whether  the 
payment  was  made  as  the  result  of  a  contract  or  as  a  gratuity. 
Ohio  R.  Co.  V.  Dickerson,  59  Ind.  317.  It  has  been  held  by  the 
courts  of  last  resort  of  New  York  and  Alabama,  and  by  inter- 
mediate courts  in  Missouri,  that  where  an  employer  pays  to  his 
employe,  during  the  period  of  his  disability,  an  amount  which 
would  be  equal  to  his  wages  earned  if  he  had  been  at  work,  the 
employe  cannot  seek  compensation  for  lost  time  against  a  wrong- 
doer who  causes  the  time  to  be  lost.  See  Drinkwater  v.  Dinsmore, 
80  N.  Y.  390,  36  Am.  Rep.  624;  Montgomery  Ry.  Co.  v.  Mallette, 
92  Ala.  210,  9  South.  363  (6)  ;  Lee  v.  Western  Union  Tel.  Co.,  51 
Mo.  App.  375  (6),  385;  Ephland  v.  Ry.  Co.,  57  Mo.  App.  147  (4), 
160.  A  ruling  to  the  same  effect  seems  to  have  been  made  by 
Lore,  C.  J.,  on  circuit  in  Delaware.  Chielinsky  v.  Hoopes,  1 
Marv.  (Del.)  273,  40  Atl.  1127  (6).  None  of  these  cases  seem  to 
lay  any  stress  upon  the  question  as  to  whether  the  payment  was 
a  gratuity,  or  was  required  by  the  contract  of  employment.  The 
cases  referred  to  above  are  cited  in  the  dift'erent  text-books  on 
Damages.  These  text-writers  do  not  agree  as  to  what  is  the  cor- 
rect rule,  but  Mr.  Watson  distinctly  takes  the  position  that  the 
sounder  view  is  that  which  would  preclude  the  wrongdoer  from 
taking  advantage  of  the  employer's  having,  from  reasons  satis- 
factory to  himself,  paid  to  his  injured  employe  an  amount  which 
would  have  been  equal  to  his  wages  if  he  had  performed  the  serv- 


BEDDCTION    OF   LOSS  131 

ices  for  the  period  during  which  he  was  disabled.     See  Watson's 
Dam.  Pers.  Inj.  §  479;    1  Suth.  Dam.  (3d  Ed.)  §  158;    2  Rorer  on 

R.  R.  p.  859;    1  Joyce  on  Dam.  §  231;    Voorhies  on  Dam.  p.  61. 

*     *     * 

We  think  the  view  taken  by  Mr.  Watson,  and  which  seems  also 
to  be  concurred  in  by  Mr.  Sutherland  and  ]\Ir.  Rorer,  is  sounder 
than  that  which  appears  to  be  approved  by  the  other  text-writers. 
The  wrongdoer  may  show,  in  defense  to  a  claim  for  lost  time,  that 
no  time  has  been  lost ;  and  this,  of  course,  is  right  and  just,  be- 
cause, if  no  time  has  been  lost,  no  compensation  is  due  from  any- 
bod}^  on  account  of  lost  time.  But  if  time  has  been  lost  as  the 
result  of  a  tort,  sound  sense,  common  justice,  and,  it  may  be,  pub- 
lic policy  would  demand  that  the  tort  feasor  be  prohibited  from 
making  a  defense  founded  upon  the  proposition  that  he  has  been 
guilty  of  a  wrong — it  may  be,  a  grieyous  and  outrageous  wrong — 
but  that  some  third  person,  not  only  not  in  sympathy  with  the 
wrongdoer,  but  despising  him  and  his  act,  has,  from  some  worthy 
motive,  paid  to  the  injured  person  an  amount  which,  if  it  had  come 
from  the  wrongdoer,  would  have  equaled  the  damages  which 
would  have  been  assessed  against  him.  There  is  nothing  in  the 
record  to  show  that  the  government,  in  its  contract  of  employ- 
ment with  railway  postal  clerks,  stipulates  for  the  payment  of 
salary  during  periods  of  disability;  and,  so  far  as  the  record  dis- 
closes, when  such  an  employe  is  disabled  from  work,  he  cannot, 
as  a  matter  of  right,  demand  anything  from  the  government  by 
way  of  compensation  during  the  period  of  disability.  There  is 
nothing  in  the  testimony  of  the  witness  King  to  indicate  that  pay- 
ments are  made  in  such  cases  otherwise  than  as  a  matter  of  grace. 
If  we  look  at  the  postal  law  or  regulation  above  quoted,  it  is  per- 
fectly clear  that  the  payment  is  a  mere  gratuity  on  the  part  of  the 
government. 

We  are  therefore  not  confronted  in  the  present  case  with  the 
necessity  for  deciding  the  question  as  to  what  would  be  the  rule 
in  the  event  that  the  injured  employe,  under  his  contract  of  em- 
ployment, had  a  right  to  demand  of  his  employer  the  amount 
which  he  would  have  earned  as  wages  during  the  period  he  was 
disabled.  On  this  question  we  now  make  no  authoritative  ruling, 
but  we  do  rule  that  where  an  employer  pays  to  an  injured  em- 
ploye, as  a  matter  of  grace,  the  amount  which  he  would  have 
earned  as  wages  if  he  had  not  been  disabled,  a  wrongdoer  who 
brings  about  the  disability  has  no  concern  with  this  transaction 
between  the  employer  and  the  employe,  and  the  amount  so  paid 
is  not  to  be  regarded  as  in  any  sense  compensation  for  lost  time, 
Hence  there  was  no  error  in  the  charge  conii)lained  of,  nor  in 
refusing  the  instruction   requested.     *     *     *     Judgment  aflirmcd. 


132        '  COMPEXSATORY   DAMAGES 

MURPHY  V.  CITY  OF  FOND  DU  LAC. 

(Supreme  Court  of  Wisconsin,  ISGS.     23  Wis.  365,  99  Am.  Dec.  181.) 

Trespass  quare  clausum.  The  questions  here  arose  upon  the 
instructions  of  the  court,  and  its  ruHngs  as  to  evidence,  which  will 
sufficiently  appear  from  the  opinion.  Verdict  and  judgment  for 
the  plaintiff;    and  the  defendant  appealed. 

Paine,  J.  The  instruction  that  although  placing  the  dirt  on  the 
plaintiff's  lot  may  have  improved  its  value,  she  would  be  entitled 
"to  recover  as  damages  what  it  would  cost  to  remove  the  same," 
was  erroneous.  The  fact  that  a  trespass  may  have  benefited  the 
property  invaded  cannot  constitute  a  complete  defense.  The  par- 
ty is  always  entitled  to  nominal  damages,  for  the  vindication  and 
protection  of  his  right.  But  beyond  this,  except  in  cases  Vv^here 
exemplary  damages  may  be  given,  he  is  confined  to  his  actual 
damages.  And  this  being  so,  the  incorrectness  of  this  instruction 
is  apparent.  It  assumes  that  the  jury  might  be  satisfied  from  the 
evidence  that  the  placing  of  the  dirt  on  the  lot  was  really  a  benefit 
to  it,  and  increased  its  value,  yet  be  required  to  give  the  plaintiff 
as  damages  what  it  would  cost  to  remove  it.  Suppose  a  tres- 
passer fills  up  a  water  lot,  which,  without  being  filled,  is  useless. 
Could  the  owner  recover  the  cost  of  removing  the  dirt,  as  dam- 
ages for  the  trespass,  and  at  the  same  time  leave  it  on  the  lot  and 
enjoy  the  benefit  of  it?  Suppose  the  trespasser  should  grade  a 
lot  which  was  previously  inaccessible,  and  greatly  increase  its  val- 
ue by  the  grading.  Could  the  owner  take  the  advantage,  and  yet 
recover  the  cost  of  replacing  the  dirt  in  its  former  position? 
These  illustrations  seem  sufficient  to  show  that  the  rule  given  to 
th^  jury  cannot  be  the  proper  rule  of  damages. 

Undoubtedly  the  plaintiff  would  have  been  entitled  to  an  in- 
struction that  in  determining  whether  the  lot  was  benefited  or 
not,  the  jury  should  consider  the  uses  and  purposes  to  which  she 
intended  to  devote  it.  But,  in  the  absence  of  any  thing  to  the 
contrary,  it  is  to  be  presumed  that  they  were  properly  instructed 
on  this  point,  and  gave  to  those  circumstances  proper  consider- 
ation. And  although,  after  doing  so,  they  should  come  to  the 
conclusion  that  the  act  complained  of  really  caused  no  damage 
whatever,  but  on  the  contrary  was  a  benefit  to  the  plaintiff,  they 
were  required  to  give  her  arbitrarily  as  damages  what  it  would 
cost  her  to  remove  the  dirt. 

I  think,  also,  that  the  evidence  as  to  whether  the  change  made 
did  not  give  the  plaintiff's  lot  more  frontage  on  the  street,  was 
improperly  excluded.  The  plaintiff's  counsel  suggests  that  the 
defendant  did  not  offer  in  this  connection  to  show  that  such  in- 
creased frontage  was  any  advantage.  But,  if  such  was  the  actual 
effect  upon  the  lot,  the  defendant  had  a  right  to  show  the  fact. 
The  jury  would  have  had  the  right  to  apply  their  general  knowl- 


INJURIES   TO   LIMITED    INTERESTS  13.3 

edge  to  the  facts,  and  to  have  determined  whether  an  increase  of 
frontage  was  an  advantage  or  not,  without  any  direct  expression 
of  opinion,  on  the  part  of  witnesses,  upon  the  suhject.  The  judg- 
ment is  reversed,  and  the  cause  remanded  for  a  new  trial. 


XII.  Injuries  to  Limited  Interests  *" 
1.  Interests  in  Real  Property  in  Possession 


ELLIOTT  V.  MISSOURI  PACIFIC  RY.  CO. 

(Court  of  Appeals  of  Kansas,  1S9S.     8  Kan.  App.  191,  55  Pac.  490.) 

Action  by  Mattie  E.  Elliott  and  others  against  the  Missouri 
Pacific  Railway  Company  to  recover  damages  for  a  loss  by  fire 
alleged  to  have  been  caused  by  a  locomotive  engine  in  the  op- 
eration of  defendant's  railroad.  Plaintiffs  were  tenants  in  pos- 
session of  a  farm,  and  the  loss  was  the  destruction  of  the  meadov/. 
There  was  judgment  for  defendant,  and  plaintiffs  bring  error. 

McElroy,  J."**  *  *  *  'piig  plaintiffs  in  error,  for  a  rever- 
sal of  the  judgment,  rely  upon  the  following  assignments  of 
error ;     *     *     * 

Second.  That  the  court  erred  in  instructing  the  jury:  "The 
plaintiff's'  interest  in  said  land  was  that  of  tenants  for  the  season 
of  1894.  The  plaintiffs  therefore  cannot  recover  for  any  injury 
to  the  land  itself,  except  so  far  as  it  may  have  affected  the  value 
of  the  use  of  the  land  for  the  term  for  which  they  had  leased  or 
rented  it;  and,  if  you  find  for  the  plaintiffs,  the  measure  of  their 
recovery  will  be  the  dift'ercnce  between  the  rental  value  of  the 
land  immediately  before  and  immediately  after  the  injury  com- 
plained of,  from  March  1,  1894,  to  March  1,  1895,  not  exceedmg 
the  sum  of  $480,  the  amount  claimed  in  the  petition." 

This  instruction  correctly  states  the  recoverable  measure  of 
damages  upon  the  issues.     *     *     *     The  judgment  is  affirmed. 

08  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  4G. 

ey  I'art  of  the  opinion  ia  omitted  and  tlie  sUitement  of  facts  ia  rewriUeu. 


134  COMPENSATORY  DAMAGES 


2.  Interests  oe  Mortgagor  and  Mortgagee 


DELAWARE  &  A.  TELEGRAPH  &  TELEPHONE  CO.  v. 

'  ELVINS. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1899.     63  N.  J.  Law,  243, 
43  Atl.  903,  76  Am.  St.  Rep.  217.) 

Action  by  Elizabeth  Elvins  and  others  against  the  Delaware  & 
Atlantic  Telegraph  &  Telephone  Company.  There  was  judgment 
for  plaintiffs,  and  defendant  brings  error. 

Van  Syckel,  J.'^"  The  declaration  in  this  case  charges  the  de- 
fendant company  with  breaking  and  entering  the  plaintiffs'  close, 
and  mutilating  and  cutting  a  number  of  shade  and  ornamental 
trees.  The  writ  of  error  is  prosecuted  to  review  a  judgment  ren- 
dered for  the  plaintiffs  in  the- trial  court. 

The  plaintiffs  owned  the  premises  in  fee  on  which  the  trees 
stood,  subject  to  a  mortgage.  The  defendant  offered  to  prove  that 
at  the  time  of  the  alleged  trespass  the  mortgage  exceeded  the  value 
of  the  property,  and  that  the  mortgage  had  been  subsequently 
foreclosed,  and  the  premises  sold  pending  this  suit  for  m.uch  less 
than  the  mortgage  debt.  The  court  excluded  this  evidence,  and 
instructed  the  jury  to  find  a  verdict  for  the  plaintiff  for  the  full 
amount  of  damage  done.  This  is  assigned  for  error.  There  can 
be  no  question  that  the  owner  of  the  fee  in  possession  of  real  es- 
tate can  maintain  an  action  of  trespass  quare  clausum  fregit,  al- 
though it  is  incumbered  by  a  mortgage.  It  has  also  been  the  ac- 
cepted law  in  this  state  that  a  mortgagee  may  maintain  an  action 
against  the  wrongdoer  for  an  injury  to  the  mortgaged  premises. 
Turrell  v.  Jackson,  39  N.  J.  Law.  329;  Schalk  v.  Kingsley,  42  N. 
J.  Law,  32.  The  question  of  difficulty  arises  in  ascertaining  the 
rule  of  damages  to  be  applied  to  such  cases. 

In  the  case  now  under  review,  the  mortgagor,  under  the  direc- 
tion of  the  trial  court,  recovered  compensation  for  the  entire  dam- 
age done  by  the  trespass;  and  if  the  trespasser,  after  satisfying 
this  judgment,  is  still  subject  to  a  suit  by  the  mortgagee,  in  which 
a  like  amount  may  be  recovered  and  made  out  of  his  property,  it  is 
obvious  that  great  injustice  has  been  done,  and  that  the  correct 
legal  rule  could  not  have  been  applied  in  this  cause.  But  to  the 
assumption  that  this  liability  exists  on  the  part  of  the  defendant 
to  the  mortgagee,  and  that  the  trial  court  is  without  power  to  fur- 
nish adequate  protection  to  the  trespasser,  we  cannot  assent.  In 
Turrell  v.  Jackson,  39  N.  J.  Law,  329,  which  was  a  suit  by  a  second 

TO  Part  of  the  opinion  is  omitted. 


INJURIES   TO    LIMITED   INTERESTS  135 

mortgagee,  Mr.  Justice  Dixon  said  that  "the  damages  recoverable 
are  to  be  measured  by  the  injury  to  the  mortgagee  as  a  security, 
and,  if  it  be  doubtful  whether  the  damages  should  not  go  to  the 
first  mortgagee,  the  court  will  exert  its  equitable  powers  to  con- 
trol the  disposition  df  the  fund  so  that  no  injustice  may  be  done." 
In  Martin  v.  Insurance  Co.,  38  N.  J.  Law,  140,  20  Am.  Rep.  372,  it 
was  declared  that  a  like  equitable  power  inhered  in  the  trial  court. 
In  the  later  case  of  Schalk  v.  Kingsley  a  like  remedy  was  accorded 
to  the  mortgagee,  and  it  was  adjudged  that  his  damages  were  to 
be  measured  by  the  diminution  in  the  value  of  his  mortgage. 
When  the  mortgagee  has  instituted  the  prior  suit,  and  recovered 
his  damages,  as  he  may,  there  is  no  difficulty  about  the  rule.  The 
owner  may  still  maintain  an  action  for  the  injury,  and  the  tres- 
passer can  protect  himself  by  giving  in  evidence  the  recovery  by 
the  mortgagee  in  mitigation  of  damages. 

The  owner  has  suffered  damage  to  the  full  extent  of  the  injury, 
but  his  claim  has  been  satisfied  pro  tanto  by  payment  to  the  mort- 
gagee for  his  loss.  But  when  the  owner  alone  sues,  and  the  case 
goes  to  trial  upon  the  issue  therein  joined,  the  damages  must  be 
commensurate  with  the  loss  which  falls  upon  the  land  by  reason 
of  the  wrongful  act.  The  damage  committed  upon  the  locus  in 
quo  is  none  the  less  because  it  is  incumbered  by  a  mortgage.  The 
owner  sufifers  to  the  extent  of  the  entire  loss.  His  premises  are 
diminished  in  value  to  the  full  amount  that  will  compensate  for 
the  injury.  He  is  entitled  to  redeem  the  mortgage,  and  he  may 
compel  the  wrongdoer  to  restore  to  him  all  that  he  has  destroyed 
and  deprived  him  of.  In  Massachusetts,  by  force  and  effect  of 
the  mortgage  the  legal  estate  vests  at  once  in  the  mortgagee,  and 
there  the  mortgagee  recovers  the  full  amount  of  damages  done  to 
the  mortgaged  premises.  Gooding  v.  Shea,  103  Mass.  360,  4  Am. 
Rep.  563;  Byrom  v.  Chapin,  113  Mass.  308;  Page  v.  Robinson,  10 
Cush.  99.  The  damages  must  be  a  recompense  for  the  injury  done 
to  the  property,  Thompson  v.  Banking  Co.,  17  N.  J.  Law,  480; 
Vreeland  v.  Berry,  21  N.  J.  Law,  183. 

When  the  owner  sues,  the  property  injured  is  the  tract  of  land; 
and  when  the  mortgagee  is  the  plaintiff,  the  property  injured 
is  his  mortgage.  In  either  case  the  entire  injury  to  the  prop- 
erty of  the  plaintiff  is  recovered.  When  the  mortgagor  of  chat- 
tels prosecutes  a  stranger  for  taking  the  mortgaged  goods,  the 
established  rule  of  this  court  is  that  he  is  entitled  to  recover  their 
full  value,  without  regard  to  the  mortgage.  He  must  recover 
all  the  damages  that  both  mortgagor  and  mortgagee  can  claim, 
and  it  necessarily  constitutes  a  legal  bar  to  further  recovery  by 
either.  Luse  v.  Jones,  39  N.  J.  Law,  707.  No  reason  appears 
why  a  different  rule  shall  prevail  when  the  action  is  for  trespass 
upon  lands.  The  right  both  of  the  mortgagor  and  mortgagee  to 
seek  redress  in  a  court  of  law  being  conceded,  the  equitable  power 


i;',G  COMPENSATORY  DAMAGES 

must  reside  in  the  court,  in  a  just  administration  of  the  law,  to 
control  the  judgment  and  proceedings  in  such  a  way  that  the 
amount  recovered  shall  be  appropriated  to  satisfy  the  demands  of 
each  in  accordance  with  their  respective  rights,  and  with  the  rights 
of  the  defendant  wrongdoer.  There  was  therefore  no  error  in 
this  regard  in  the  trial  below. 

A  further  objection  to  the  legality  of  the  proceedings  on  the 
trial  is  that  William  A.  Elvins,  a  witness  produced  on  the  part 
of  the  plaintiffs,  was  permitted,  notwithstanding  objection  to  his 
evidence,  to  testify  to  the  value  of  the  shade  trees.  This  evidence 
was  excepted  to  by  the  counsel  of  the  defendant  on  the  ground 
that  it  was  incompetent.  *  *  *  It  certainly  requires  some  spe- 
cial knowledge  to  be  able  to  estimate  the  value  of  trees.     *     *     * 

In  this  case  there  was  an  entire  absence  of  any  fact  to  show 
that  the  opinion  of  the  witness  was  entitled  to  be  regarded  as  evi- 
dence. *  *  *  It  was  error,  therefore,  in  the  trial  court  to  allow 
the  witness  to  testify  as  to  the  value  of  the  trees  as  shade  trees,  and 
for  that  reason  the  judgment  should  be  reversed. 


3.  Joint  Interests 


WAGGONER  v.  SNODY. 

(Supreme  Court  of  Texas,  1905.     9S  Tex.  512,  85  S.  W.  1134.) 

Brown,  J.^^  *  *  *  One  Wyatt  was  owner  of  two  sections 
of  land,  which  were  situated  in  a  pasture  that  belonged  to  P.  S. 
Witherspoon,  who  rented  the  said  land  from  Wyatt  upon  the 
agreement  that  Witherspoon  was  to  pay  annually  the  interest 
upon  a  portion  of  the  purchase  money  due  to  the  state  of  Texas 
and  the  taxes  for  each  year.  Witherspoon  sold  his  pasture  to 
Waggoner,  and  turned  over  his  lease  contract  for  two  sections  to 
Waggoner,  who  failed  to  pay  the  interest  upon  the  purchase  money 
due  the  state,  as  he  had  agreed  to  do,  and  Wyatt  leased  the  land 
to  W.  F.  Snody.  Snody  and  one  Ellerd  were  the  owners  of  about 
60  head  of  horses,  which  Snody  turned  into  the  said  pasture. 
Snody  owned  about  two-thirds  of  the  horses,  and  Ellerd  about 
one-third.  The  defendant  C.  I.  Bedford  was  Waggoner's  ranch 
boss,  and  had  charge  of  the  ranch.  Harve  Lawson  was  in  the 
employ  of  Waggoner  as  a  hand  upon  the  ranch.  Waggoner  di- 
rected Bedford  to  have  all  horses  and  cattle  which  did  not  belong 
CO  Waggoner  or  Witherspoon  turned  out  of  the  pasture,  and,  in 

71  Part  of  the  opinion  is  omitted. 


INJURIES   TO   LIMITED   INTERESTS  137 

pursuance  of  this  direction,  Lawson,  with  other  hands,  drove  the 
horses  of  Snody  out  of  the  pasture.  Some  of  the  horses  were 
lost,  and  others  were  injured,  for  which  Snody  brought  this  suit 
against  Waggoner  and  Bedford  for  actual  and  exemplary  dam- 
ages, and  upon  the  trial  recovered  of  the  defendants  damages, 
both  actual  and  exemplary,  which  judgment  the  Court  of  Civil 
Appeals  affirmed.     *     *     * 

The  defendants  requested  the  court  to  give  this  charge,  which 
was  refused:  "If  you  believe  from  the  evidence  that  the  plaintiff 
was  only  a  part  owner  of  said  property,  and  that  J.  J.  Ellerd  and 
Reuben  Ellerd,  or  either  of  them,  was  or  were  also  part  owners 
thereof,  at  the  time  the  horses  were  put  out  of  the  pasture,  then 
you  can  only  find  for  the  plaintiff  such  proportion  of  the  damages, 
if  you  find  any,  as  shall  be  equal  to  his  interest  in  such  horses; 
and,  if  there  is  no  evidence  tending  to  establish  the  amount  of 
interest  owned  by  each  party,  then  you  should  find  for  the  de- 
fendants."    *     *     * 

In  view  of  another  trial,  we  think  it  proper  to  express  our  views 
of  the  law  upon  the  question  presented  for  the  refusal  of  the 
charge  above  copied.  It  is  claimed  for  Snody  that  he  was  a  bailee 
of  the  horses,  and  therefore  entitled  to  recover  in  full  for  their 
value,  or  for  damages  to  them.  The  Court  of  Civil  Appeals  do 
not  find  that  he  was  a  bailee,  nor  do  they  state  facts  from  which 
such  a  conclusion  can  be  drawn.  Reference  to  the  testimony  shows 
that  the  only  evidence  which  bears  upon  that  question  is  that 
Snody  himself  stated  that  he  had  received  the  horses  about  five 
years  previous  to  that  time  from  Ellerd  "on  the  shares,"  but  no 
statement  is  made  of  any  contract  under  which  he  claimed  the 
right  of  possession,  management,  and  control  of  the  property.  If 
Snody  and  Ellerd  owned  the  horses  jointly,  and  Snody  was  not 
entitled  to  the  exclusive  possession  of  them  as  a  bailee,  the  charge 
above  quoted  should  have  been  given.  Where  a  joint  owner  of 
personal  property  brings  a  suit  for  damages  thereto  without  join- 
ing the  other  owner  or  owners,  he  cannot  recover  the  whole  value 
of  the  property,  or  the  damages  which  may  have  been  inflicted 
upon  it,  but  will  be  entitled  to  recover  only  his  proportionate  part 
of  such  value  or  damages,  notwithstanding  defendant  has  not 
pleaded  the  nonjoinder  in  abatement.  May  v.  Slade,  24  Tex.  209; 
Railroad  v.  Knapp,  51  Tex.  592;  Dolson  v.  De  Ganahl,  70  Tex. 
622,  8  S.  W.  321 ;  Johnson  v.  Richardson,  17  111.  304.  63  Am.  Dec. 
369;  Wheelwright  v.  Depcyster,  1  Johns.  (N.  Y.)  485,  3  Am.  Dec. 
345;  Frazier  v.  Spear,  2  Bibb.  (Ky.)  386;  Webber  v.  Merrill,  34 
N.  H.  208. 

The  plaintiff's  right  being  to  recover  his  proportionate  part  of 
the  damages,  in  order  to  establish  that  right  it  devolved  upon 
him  to  show  with  reasonable  certainty  the  extent  of  his  interest 
in  the   property.     If   Snody  was  the  bailee  of  the  property,  then 


i.-^s 


COMPENSATORY  DAMAGES 


he  was  entitled  to  recover  for  the  entire  damage  done  to  the  prop- 
erty by  the  acts  of  Waggoner's  employes.  Masterson  v.  I.  & 
G.  N.  Ry.  Co.  (Tex.  Civ.  App.)  55  S.  w'  577;  Marker  v.  Dement, 
9  Gill  (Md.)  7,  52  Am.  Dec.  670,  and  note  on  page  678;  Gillette 
V.  Goodspeed,  69  Conn.  363,  37  Atl.  973;  Woodman  v.  Notting- 
ham, 49  N.  H.  393,  6  Am.  Rep.  526;  Telegraph  Co.  v.  Walker, 
72  Md.  454,  20  Atl.  1,  20  Am.  St.  Rep.  479.     *     *     * 

The  judgments  of  the  district  court  and  Court  of  Civil  Appeals 
are  reversed,  and  the  cause  remanded.^^ 

7  2  For  the  report  of  this  case  in  the  Court  of  Civil  Appeals,  see  82  S.  W. 
355  (1904). 


^ZZ  /^*-,^£.-', 


BONDS,  LIQUIDATED  DA5IAGES,  AND   ALTERNATIVE  CONTRACTS 


139 


BONDS,   LIQUIDATED    DAMAGES,   AND    ALTERNATIVE 

CONTRACTS 

I.  Liquidated    Damages    and    Penalties — Rules   of    Construction* 


MERICA  V.  BURGETT. 

(Appellate  Court  of  Indiana,  1905.    36  Ind.  App.  453,  73  N.  E.  10S3.) 

Action  (Jby  John,  W.  Burgett  against  Alex.  Merica  and  another 
for  breach  of  contract.  The  contract  provided  for  the  sale  of  a 
banking  business  conducted  by  the  defendants,  and  contained  a 
stipulation  that  defendants  would  not  start  another  bank  in  the 
town  as  long  as  plaintiff  owned  the  bank  sold  to  him  under  the 
contract.  The  contract  contained  the  additional  stipulation  "that 
a  failure  of  either  party  to  fulfill  this  contract  forfeits  to  the 
other  party  one  thousand  ($1,000)  dollars."  •  There  was  a  breach 
of  the  contract  by  the  defendant  Merica.  From  a  judgment  for 
plaintiff"  for  $500,  defendants  appeal,  and  plaintiff  assigns  cross- 
errors. 

Myers,  P.  J.^  *  ■'  *  Is  the  stipulated  sum  of  money  in  the 
contract  to  be  regarded  as  liquidated  damages  or  as  a  penalty? 
So  far  as  we  have  been  able  to  discover  from  adjudicated  cases, 
no  positive  rules  have  been  deduced  as  an  absolute  guide  in  all 
cases  by  which  it  may  be  determined  whether  a  contract  provid- 
ing for  a  stipulated  sum  for  its  breach  is  to  be  regarded  as  a 
penalty  or  liquidated  damages,  for  it  has  been  held  to  so  desig- 
nate a  fixed  sum  in  an  agreement  as  a  penalty  or  liquidated  dam- 
ages will  not  be  conclusive  to  show  that  it  should  be  thus  re- 
garded. Whitfield  V.  Levy,  35  N.  J.  Law,  149;  Noyes  v.  Phillips, 
60  N.  Y.  408;  Keck  v.  Bieber,  148  Pa.  645,  24  Atl.  170,  33  Am. 
'St.  Rep.  846;  Wilhelm  v.  Eaves,  21  Or.  194,  27  Pac.  1053,  14 
L.  R.  A.  297.  Therefore  it  may  be  said  that  the  answer  to  the 
question  here  propounded  will  be  the  conclusion  reached  upon 
determining  the  intention  of  the  parties  from  the  whole  case  and 
tenor  of  the  contract,  aided  by  a  few  established  general  princi- 
ples for  inferring  such  intention.  It  has  been  held  that  "where 
the  sum  named  is  declared  to  be  fixed  as  liquidated  damages  is 
not  greatly  disproportionate  to  the  loss  that  may  result  from  a 
breach,  and  the  damages  are  not  measurable  by  any  exact  pecun- 
iary standard,  the  sum  designated  will  be  deemed  to  be  stipulated 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  4S-C0. 
«  Part  of  the  opinion  is  oniiLted  and  the  sLatenieut  of  facts  is  rowTitten. 


140         BONDS,  LIQUIDATED  DAMAGES,  AND  ALTERNATIVE  CONTRACTS 

damages."  Jaqua  v.  Headington,  114  Ind.  309,  16  N.  E.  527;  Bird 
V.  St.  John's  Episcopal  Church,  154  lud.  138,  147,  56  N.  E.  129; 
Chicago  &  S.  E.  Ry.  Co.  v.  McEwen,  35  Ind.  App.  251,  71  N.  E. 
926;  Banner  v.  Magee,  34  Ind.  App.  176,  70  N.  E.  823;  Kelso  v. 
Reid,  145  Pa.  606,  23  Atl.  323,  27  Am.  St.  Rep.  716;  Waggoner 
V.  Cox,  40  Ohio  St.  539;  Streeter  v.- Rush,  25  Cal.  67;  Mason 
V.  Callender,  2  Minn.  350  (Gil.  302)  72  Am.  Dec.  102. 

Where  a  stipulated  sum  has  been  inserted  in  a  contract  for  a 
breach  of  an  agreement  to  sell,  the  weight  of  authority  seems  to 
hold  such  sum  to  be  liquidated  damages,  upon  the  theory  that 
the  damages  sustained  in  almost  all  cases  are  uncertain  and  diffi- 
cult to  estimate.  McCormick  v.  Mitchell,  S7  Ind.  248;  Gobble  v. 
Linder,  76  111.  157;  Morse  v.  Rathburn,  42  Mo.  594,  97  Am.  Dec. 
359;  Yetter  v.  Hudson,  57  Tex.  604;  Berrinkott  v.  Traphagen, 
39  Wis.  219;  Burk  v.  Dunn,  55  111.  App.  25.  Also  for  a  breach 
of  a  contract  not  to  engage  in  any  particular  profession  or  busi- 
ness within  certain  prescribed  limits.  Duffy  v.  Shockey,  supra 
[11  Ind.  70,  71  Am.  Dec.  348]  ;  Miller  v.  Elliott,  1  Ind.  484,  50 
Am.  Dec.  475;  Martin  v.  Murphy,  129  Ind.  464,  28  N.  E.  1118^ 
Johnson  v.  Gwinn,  supra  [100  Ind.  466]  ;  Esiel  v.  Hayes,  supra 
[141  Ind.  41,  40  N.  E.  119];  Beatty  v.  Coble,  142  Ind.  329,  41 
N.  E.  590;  Boyce  v.  Watson,  52  111.  App.  361;  Lange  v.  Werk,. 
2  Ohio  St.  519;  Kelso  v.  Reid,  supra;  Hoagland  v.  Segur,  38  N. 
J.  Law,  230.  But,  where  damages  can  be  accurately  ascertained^ 
a  stipulated  sum  will,  as  a  rule,  be  considered  as  a  penalty,  regard- 
less of  the  expressions  in  or  the  nature  of  the  contract.  Squires 
V.  Elwood,  ^Z  Neb.  126,  49  N.  W.  939;  Tiernan  v.  Hinman,  16 
111.  400;  St.  Louis,  etc.,  Ry.  Co.  v.  Shoemaker,  27  Kan.  677;  Hahn 
V.  Horstman,  12  Bush  (Kv.)  249. 

It  is  said  in  Harris  v.  Miller  (C.  C.)  11  Fed.  118:  "(1)  When- 
ever it  is  at  all  doubtful  whether  the  sum  mentioned  was  intended 
as  stipulated  damages  or  a  penalty  to  cover  actual  damages,  the 
law,  which  always  favors  the  latter  as  against  the  former,  declares 
that  the  sum  was  intended  as  a  penalty.  (2)  When  the  contract 
is  explicit  that  the  sum  mentioned  shall  be  considered  as  liquidated 
damages,  the  contract  is  to  be  enforced  according  to  its  terms, 
unless  qualified  by  some  other  circumstances,  as  when  one  agrees 
to  pay  a  larger  sum  upon  the  failure  to  pay  a  smaller  one,  or  when 
the  damages  resulting  from  a  failure  to  perform  the  contract  are 
certain,  or  can  be  reasonably  ascertained  by  a  jury.  But  whenever 
the  contract  is  for  the  doing  or  not  doing  a  particular  act  or  acts, 
and  there  is  no  certain  pecuniary  standard  by  which  to  measure 
the  damages  resulting  from  a  breach  thereof,  an  agreement  to 
pay  a  stipulated  stmi  as  damages  for  such  breach  will  be  enforced 
literally." 

In  the  consideration  of  this  case  we  are  not  unmindful  of  the 
established  principle  that  "if  a  contract  contains  various  stipula- 


RULES   OF   CONSTRUCTION  141 

lions  for  the  breach  of  some  of  which  the  damages  would  be  un- 
certain, and  as  to  others  certain  and  easily  shown  by  the  evidence, 
then  the  sum  mentioned  in  an  obligation  to  secure  the  perform- 
ance of  the  contract  is  regarded  as  a  penalty,  and  not  as  liquidated 
damages."  Carpenter  v.  Lockhart,  1  Ind.  435;  East  Moline  Co. 
V.  Weir  Plow  Co.,  95  Fed.  250,  Zl  C.  C.  A.  62 ;  Carter  v.  Strom, 
41  :^Iinn.  522,  43  N.  W.  394;  Smith  v.  Newell,  37  Fla.  147,  20 
South.  249.  In  the  latter  case  it  is  said  "that  a  sum  fixed  as  se- 
curity for  the  performance  of  a  contract  containing  a  number  of 
stipulations  of  widely  different  importance,  breaches  of  some  of 
which  are  capable  of  accurate  valuation,  for  any  of  which  the 
stipulated  sum  is  an  excessive  compensation,  is  a  penalty."  There- 
fore, and  upon  the  holdings  of  the  cases  last  cited,  appellant  in- 
sists that  the  parties  to  the  contract  in  suit  intended  the  lump 
sum  mentioned  therein  as  a  penalty.  We  are  not  persuaded  to 
agree  to  this  conclusion.  If  we  were  to  consider  the  language 
"agree  to  quit  the  banking  business  March  5,  1900,  and  further 
agree  not  to  start  another  bank  in  the  town  as  long  as  said  John  W. 
Burgett  owns  the  bank  of  Francesville,"  as  two  stipulations,  we 
cannot  see  how  they  are  widely  different  in  importance,  as  they 
both  and  each  of  them  have  reference  to  the  one  general  object 
and  purpose,  that  of  preventing  competition  by  appellants  with 
appellee  in  the  banking  business  after  March  5,  1900,  in  the  town 
of  Francesville. 

The  whole  subject-matter  of  the  contract  was  plainly  a  matter 
about  which  they  had  a  right  to  contract  and  fix  by  stipulation 
the  measure  of  damages  for  its  breach,  and,  having  understand- 
ingly  done  so  without  fraud,  and  the  contrary  does  not  appear, 
they  should  be  held  to  their  agreement,  if  the  stipulated  sum  has 
reference  to  uncertain  damages.  The  time  for  appellants  to  quit 
was  fixed  in  the  contract.  It  is  presumed  they  contracted  with 
reference  to  that  time,  and  not  that  they  should  continue  the  busi- 
ness for  a  month  or  a  year,  or  that  they  might  start  an  opposition 
bank.  To  measure  by  any  exact  pecuniary  standard  the  amount 
of  damages,  if  any,  appellee  might  suffer  by  reason  of  Merica  and 
Bledsoe  continuing  the  business  for  a  longer  time  than  that  men- 
tioned in  the  contract  or  in  starting  an  opposition  bank,  was  a 
matter  they  no  doubt  fully  considered  at  the  time  of  entering  into 
the  agreement.  It  seems  to  us  for  Bledsoe  and  Merica,  or,  as 
we  have  said,  for  either  of  them,  to  continue  the  business,  or 
afterwards  engage  in  such  business  or  start  another  bank  in  the 
same  town  within  the  time  limited  by  the  contract,  there  is  no 
exact  pecuniary  standard  by  which  a])i)ellee's  damages,  if  any, 
could  be  ascertained.  If  by  reason  of  their  breach  of  the  con- 
tract any  of  the  customers  of  the  bank  withdrew  their  deposits, 
by  what  pecuniary  measure  can  the  damages  be  fixed  for  such 
loss  ? 


142         BONDS,  LIQUIDATED  DAMAGES,  AND  ALTERNATIVE  CONTRACTS 

The  question  would  at  once  arise,  how  much  business  did  the 
bank  lose?  how  much  did  they  do,  or  would  they  have  done,  had 
they  remained  customers  of  the  bank?  and  whether  the  business 
would  have  been  done  at  a  profit  or  loss  to  the  bank;  and  many 
other  questions  might  arise,  rendering  it  impossible  from  extrinsic 
evidence  to  arrive  at  the  exact  rights  of  the  parties.  The  appellee 
paid  $4,000  for  the  bank  fixtures,  books,  furniture,  etc.  Just  what 
proportion  of  this  sum  was  paid  for  the  tangible  property  and 
what  proportion  was  paid  for  the  business  thus  established  by 
the  vendees  does  not  appear,  nor  does  it  appear  that  the  sum  fixed 
in  the  contract,  in  case  of  a  breach,  is  unreasonable,  and  not  in 
proportion  to  the  breach  provided  against  in  either  stip;ulation. 
Nor  do  the  findings  show  that  the  amount  of  damages  claimed 
is  unjust  or  oppressive  or  that  the  amount  claimed  is  dispropor- 
tionate to  the  damages  that  might  result  from  a  breach  of  the 
agreement.  Controlled  by  the  facts  found,  and  adhering  to  the 
principles  of  law  which  obtain  in  this  case,  it  is  our  opinion  that 
the  stipulated  sum  in  the  contract  should  be  construed  as  liqui- 
dated damages.     *     *     * 

The  judgment  is  therefore  reversed,  with  instructions  to  the 
trial  court  to  restate  its  conclusions  of  law  so  as  to  conclude  there 
is  due  appellee  from  appellants  the  sum  stipulated  in  the  contract, 
together  with  interest  thereon  from  the  time  of  the  demand,  and 
to  render  judgment  accordingly. 


O'KEEFE  v.  DYER. 

(Supreme  Court  of  Montana,  1898.     20  Mont.  477,  52  Pac.   190.) 

Action  by  William  O'Keefe  against  William  Dyer  and  others 
to  recover  the  sum  named  in  a  contract,  executed  by  defendant 
Dyer  as  principal,  and  by  the  other  defendants  as  sureties,  by 
the  terms  of  which  the  defendants  acknowledged  themselves  bound 
to  plaintiff  for  $1,000,  the  condition  being:  "Whereas,  the  above- 
bounden  Wm.  Dyer  is  about  to  apply  for  a  United  States  patent 
for  certain  quartz  lodes  situated  in  Deer  Lodge  county;  and 
whereas,  in  the  survey  of  the  Gladstone  lode  some  ground  claimed 
by  the  said  O'Keefe  has  been  included:  *  *  *  Now,  therefore, 
if  the  said  William  Dyer  shall  execute  to  the  said  Will  O'Keefe 
a  deed  of  quitclaim  to  the  portion  of  claim  above  described,  at 
any  time  when  called  upon  so  to  do,  after  the  securing  of  United 
States  patent  therefor,  then  this  obligation  shall  be  null  and  void: 
otherwise,  be  and  remain  in  full  force  and  effect." 

The  complaint  alleged  that  Dyer  conveyed  the  property  to  the 
Ontario  Mining  Company,  and  that  in  December,  1894,  he  secured 
the   patent   therefor,   which    inured   to   the   benefit  of  the   mining 


RULES   OF    CONSTRUCTION 


143 


company,  and  that  in  Alay,  1895,  the  plaintiff  demanded  a  con- 
veyance from  Dyer,  who  refused  to  make  it.  The  answer  admit- 
ted the  making  of  the  contract,  the  conveyance  to  the  mining  com- 
pany, and  the  issuance  of  the  patent,  and  averred  that  Dyer's  con- 
veyance to  the  mining  company  was  expressly  made  subject  to 
all  claims  existing  against  him  at  the  time  of  the  transfer  with 
reference  to  t-Jie  property,  and  that  the  company  had  always  rec- 
ognized the  obligation  entered  into  by  Dyer,  and  ever  since  re- 
ceipt of  the  patent  had  been  ready  and  willing  to  execute  the  con- 
veyance to  plaintiff',  when  demanded,  and  denied  that  any  demand 
was  ever  made  for  a  conveyance,  or  that  Dyer  refused  to  convey, 
and  stated  that  the  plaintiff"  applied  to  the  company  in  1895  for 
a  conveyance,  and  was  informed  by  its  officers  that  on  presentation 
of  the  bond,  from  which  the  description  could  be  obtained,  the 
company  would  convey  to  plaintiff.  The  answer  tendered,  and 
offered  to  deliver  on  behalf  of  the  defendants,  a  deed  of  bargain 
and  sale  from  the  mining  company,  conveying  to  plaintiff  the 
property  described  in  the  contract,  and  the  deed  was  filed  -with 
the  answer. 

The  court  found  that  the  mining  company,  since  the  commence- 
ment of  the  suit,  had  made  and  tendered  to  the  plaintiff  a  deed 
of  the  property;  that  the  property  is  mining  ground,  and  that 
there  was  no  evidence  of  its  value;  that  there  was  no  evidence 
to  show  that  plaintiff  had  suffered  any  damages  by  reason  of  the 
technical  breach  of  the  bond;  and  that  the  sum  named  in  the 
instrument  sued  upon  was  intended  at  the  time  it  was  executed 
as  a  penalty,  and  not  as  liquidated  damages ;  and  that  plaintiff  had 
suffered  nominal  damages  only.  From  these  findings  of  fact  the 
court  drew  the  conclusions  of  law  that  plaintiff  was  entitled  to 
have  the  deed  of  the  mining  company  delivered  to  him;  that  he 
should  have  judgment  for  one  dollar  damages  and  costs;  and  that 
the  sum  named  in  the  obligation  was  a  penalty,  and  not  liquidated 
damages.     From  this  judgment,  plaintiff  appeals. 

PiGOTT,  J.^  The  second  assignment  of  error  is  directed  to  the 
finding  that  plaintiff  suffered  nominal  damages  only  by  reason 
of  the  breach  of  the  condition  of  the  bond,  plaintiff  asserting  that 
the  pleadings  and  proof  show  the  breach  to  have  been  substan- 
tial, and  that  no  title  whatever  was  offered  to  him.  The  fourth 
assignment  is  that  the  court  erred  in  finding,  as  a  conclusion  of 
law,  that  the  sum  named  in  the  contract  is  a  penalty,  and.  not 
liquidated  damages.  These  assignments  will  be  considered  to- 
gether. 

If,  as  defendants  claim  and  the  trial  court  found,  the  sum  named 
in  the  bond  is  a  penalty,  plaintiff  can,  upon  a  breach,  recover 
nothing  beyond    that   which    will   compensate   him   for   his   actual 

8  Part  of  tile  opinion  is  omitted  :uk1  the  stateiuent  of  facts  is  rewiitteu. 


141         BONDS,  LIQUIDATED  DAMAGES,  AND  ALTERNATIVE  CONTRACTS 

loss.  Unless  proof  be  made  of  the  amount  of  injury  suffered,  he 
cannot  recover  more  than  nominal  damages;  and,  again,  if  the 
sum  be  penal,  doubtless  plaintiff  might  bring  an  action  upon  the 
promise  implied  from  the  condition,  and,  by  laying  damages  be- 
yond that  sum,  recover,  as  against  the  principal,  his  actual  dam- 
ages, though  in  excess  of  the  penalty  expressed.  Noyes  v.  Phil- 
lips, 60  N.  Y.  408;  13  Am.  &  Eng.  Enc.  Law,  867,  and  cases  cited. 
On  the  other  hand,  if  the  sum  be  for  liquidated  damages,  as  plain- 
tiff claims,  no  controversy  can  arise  in  respect  of  the  quantum 
of  damages,  for  the  reason  that  the  parties  have  agreed  in  advance 
upon  a  definite  sum  as  that  which  shall  be  paid  in  compensation 
by  the  party  committing  a  substantial  breach  of  the  condition. 
Sedg.  Dam.  §  394. 

The  great  principle  underlying  the  law  of  damages  is  that  of 
compensation, — exact  reimbursement  for  loss  sustained;  and 
hence,  while  within  limits  not  easily  defined  in  practice,  the  law 
will  enforce  an  agreement  made  between  parties  to  a  contract  by 
which  they  fix  in  advance  a  certain  amount  as  the  damages  which 
will  result  from  a  breach  of  the  contract;  yet  it  requires,  as  the 
condition  of  enforcement,  that  the  intention  of  the  parties  to  that 
eft'ect  clearly  appear  by  their  words,  or  be  manifestly  deducible 
from  the  circumstances  or  subject-matter  of  the  contract.  Upon 
this  principle,  a  bond  by  which  the  obligor  binds  himself  in  a  sum 
of  money  for  the  performance  of  the  condition  thereof  is  prima 
facie  a  penal  obligation ;  and  the  burden  of  proving  that  the  sum 
named  was  intended  as  liquidated  damages  rests  upon  the  party 
alleging  such  intention  (Tayloe  v.  Sandiford,  7  Wheat.  13,  5  L. 
Ed.  384)  ;  in  other  words,  the  sum  is  not  treated  as  liquidated 
damages  unless  the  language  used  in  the  instrument,  or  the  cir- 
cumstances existing  at  the  time  it  was  made,  show  that  such  was 
clearly  the  intention  of  the  parties  (Turck  v.  Mining  Co.,  8  Colo. 
113,  5  Pac.  838). 

Resting  upon  this  principle  is  the  further  rule,  which  is  a  corol- 
lary of  the  doctrine  just  stated,  that,  if  doubt  exist  as  to  the  real 
intention  of  the  parties,  it  will  be  resolved  by  treating  the  sum 
as  a  penalty,  "for  the  leaning  of  the  court  in  case  of  doubt  will 
be  towards  the  construction  that  the  provision  is  a  penalty"  (Suth. 
Dam.  §  286;  Sedg.  Dam.  §  408);  preferring  that  construction 
which  will  give  just  and  full  compensation  rather  than  adopt  that 
which,  without  reference  to  the  actual  damage,  is  arbitrarily  set- 
tled before  a  breach  is  committed  (Bearden  v.  Smith,  11  Rich. 
Law  [S.  C]  554).  Another  general  rule  growing  out  of  the  prin- 
ciple of  compensation  is  that  where  the  sum  mentioned  is  wholly 
collateral  to  the  object  of  the  contract,  being  inserted  merely  as 
a  security  for  the  performance,  it  is  a  penalty,  and  will  not  be 
allowed  as  liquidated  damages  (Sedg.  Dam.  §  410)  ;  or,  to  state 
the  rule  more  fully,  where  a  sum  of  money  is  mentioned  in  a  cove- 


RULES   OF    CONSTRUCTION  145 

nant  or  agreement  merely  to  secure  the  enjoymeiit  of  a  collateral 
object,  the  enjoyment  of  the  object  is  considered  as  the  principal 
intent  of  the  contract  or  covenant,  and  the  sum  of  money  but 
as  accessory,  and  therefore  only  to  secure  the  damages  really  in- 
curred (Barton  v.  Glover,  Holt,  N.  P.  43,  note). 

Applying  these  principles  to  the  contract  before  us,  we  discover 
nothing  in  its  terms  warranting  the  inference  that  the  parties  in- 
tended $1,0C0  as  the  exact  amount  of  damages  which  plaintiff 
would  suffer  from  a  breach  of  its  condition.  The  language  used 
does  not  include  any  expression  indicating  such  intention.  The 
sum  mentioned  is  not  designated  as  stipulated  damages,  nor  is  any 
similar  term  employed;  and,  while  its  absence  does  not  in  all 
cases  preclude  the  court  from  treating  the  sum  as  liquidated  dam- 
ages, still  such  omission  is,  ordinarily,  significant  of  the  under- 
standing of  the  parties  at  the  time  the  contract  was  made.  There 
is  no  presumption  in  the  law  that  damages,  resulting  from  the 
breach  of  an  obligation  to  convey  a  mining  claim,  cannot  be  cal- 
culated by  market  value,  or  estimated  by  reference  to  pecuniary 
standards;  nor  is  there  a  presumption  that  it  would  be  imprac- 
ticable or  extremely  difficult  to  fix  the  actual  damage  in  such  case. 
It  is  not  to  be  presumed  that  the  value  of  a  mining  claim  is  in- 
capable, impracticable,  or  extremely  difficult  of  ascertainment. 
True,  evidence  of  a  character  different  from  that  adduced  to  show 
the  value  of  lands  used  for  purposes  other  than  mining  may  be 
required,  and  its  procurement  may  be  attended  with  difficulty  and 
expense;  but,  nevertheless,  the  law  does  not  raise,  and  the  courts 
do  not  indulge,  the  presumption  that  proof  of  the  value  of  such 
a  claim  is  impracticable.  In  the  absence  of  exceptional  circum- 
stances, a  promise  to  pay  a  certain  sum  of  money  if  the  promisor 
fail  to  perform  his  agreement  to  convey  land  is  mere  security 
and  a  penalty  (Dooley  v.  Watson,  1  Gray  [Mass.]  416)  ;  and  this 
rule  is  applicable  to  mines  as  well.     *     '-^     * 

Is  there  anything  extraneous  to  the  contract  which  would  indi- 
cate the  intention  of  the  parties  to  agree  in  advance  upon  the 
amount  of  damages?  Counsel  for  plaintiff,  in  briefs  which  exhibit 
great  industry,  assume  that  the  evidence  established  the  difficulty 
of  estimating  the  damages.  The  only  testimony  touching  the 
subject  upon  which  the  assumption  of  plaintiff  is  based  is  his 
own  testimony,  as  follows :  "It  is  impossible  to  tell  what  the  value 
is.  It  is  a  quartz  claim,  and  there  is  no  rule  by  which  you  can 
ascertain  its  value.  +  *  *  j  don't  know  anything  about  the 
value  of  the  ground."  We  discover  nothing  in  this  which  tends 
to  support  the  contention  that  the  value  of  the  particular  quartz 
claim  owned  by  plaintiff  is  impossible  or  difficult  of  ascertainment. 
The  plain  meaning  and  obvious  effect  of  iiis  testimony  is:  "It  is 
impossible  to  ascertain  the  value  of  any  (juart/.  r.iining  claim  what- 
CooLEY  Dam. — 10 


146         BONDS,  LIQUIDATED  DAMAGES.  AND  ALTERNATIVE  CONTRACTS 

ever.  The  ground  described  in  the  contract  is  such  a  claim.  There- 
fore its  value  cannot  be  ascertained."  He  failed  to  state  any  fact 
from  which  the  court  could  determine  whether  the  opinion  or 
conclusion  of  the  witness  was  warranted.  It  was  not  the  duty  of 
the  court  to  believe  the  bald  assertion  of  the  plaintiff  to  the  effect 
that  the  value  of  all  quartz  mines,  and  of  every  one  of  them,  is 
impossible  of  ascertainment.  The  inherent  improbability  of  the 
statement  may  well  deny  to  it  credence.  It  did  not  appear  that 
he  had  ever  visited  or  inspected  the  claim,  or  caused  it  to  be  ex- 
amined, nor  was  there  any  evidence  of  its  condition  as  to  develop- 
ment or  its  character  otherwise.  Nothing  was  shown  which  tended 
to  prove  that  the  value  of  the  mine  was  difficult  or  impracticable 
of  estimation. 

To  illustrate  the  unsoundness  of  plaintiff's  contention  in  respect 
of  damages,  we  may  suppose  that  Dyer  had  violated  the  condition 
of  the  contract  by  conveying  the  mine  to  a  purchaser  for  value 
and  without  notice,  thus  preventing  the  enforcement  of  specific 
performance;  that  afterwards  the  mine  was  ascertained  to  be 
worth  many  thousands  of  dollars;  that  in  an  action  brought  by 
plaintiff  against  Dyer  alone  to  recover,  for  failure  to  perform  the 
promise  implied  from  the  condition,  damages  equal  to  the  value 
of  the  property,  defendant  insisted  that  the  $1,000  mentioned  in 
the  contract  was  for  liquidated  damages,  while  plaintiff  contended 
that  the  sum  stated  was  a  penalty;  and  that  upon  the  trial  de- 
fendant testified  that  it  was  impossible  to  ascertain  the  value 
which  the  mine  possessed  at  the  time  the  contract  was  made,  be- 
cause it  was  a  quartz  mining  claim.  Would  the  plaintiff  under 
these  circumstances  be  entitled  to  recover  the  value  of  the  prop- 
erty, or  merely  the  $1,000?  It  would  seem  that  the  recovery  ought 
to  be  measured  by  the  value  of  the  mine,  irrespective  of  the  sum 
mentioned  in  the  contract  as  security  for  performance  of  the  con- 
dition. 

For  these  reasons,  we  are  of  the  opinion  that  the  sum  mentioned 
in  the  contract  is  a  penalty.     *     *     * 

There  was  no  actual  damage  sustained  on  account  of  delay,  or 
by  reason  of  the  substitution  of  the  name  of  the  grantor;  and 
there  is  nothing  to  show  that  the  rights  of  the  plaintiff  have  been 
or  will  be  aifected  by  the  change  in  such  name.  The  breach  was 
merely  technical.  It  follows,  therefore,  that  plaintiff  was  not  en- 
titled to  recover  more  than  nominal  damages,  even  though  the 
$1,000  were  intended  as  liquidated  damages  to  be  paid  for  a  sub- 
stantial violation  of  the  condition  expressed  in  the  contract.  The 
judgment  of  the  district  court  is  affirmed. 


EULES  OF   CONSTKUCTION  147 


KECK  V.  BIEBER. 

(Supreme  Court  of  Pennsylvauia,  1892.     14S  Pa.  645,  24  Atl.   170.  33  Am. 

St.  Rep.  84(5.) 

Assumpsit  by  Emeline  C.  Keck  against  Sylvester  Bieber  on  a 
bond  whereby  he  promised  to  pay  her  $2,000  upon  the  nonper- 
formance of  certain  conditions.  There  was  no  dispute  as  to  the 
breach  of  condition,  and  a  verdict  was  directed  for  plaintiflf  for 
the  full  amount  of  the  bond.  From  a  judgment  entered  thereon, 
defendant  appeals. 

ISIiTCHELL,  J.  The  general  principle  upon  which  the  law  awards 
damages  is  compensation  for  the  loss  suffered.  The  amount  may 
be  fixed  by  the  parties  in  advance,  but,  where  a  lump  sum  is  named 
by  them,  the  court  will  always  look  into  the  question  whether 
this  is  really  liquidated  damages  or  only  a  penalty,  the  presump- 
tion being  that  it  is  the  latter.  The  name  by  which  it  is  called 
is  but  of  slight  weight,  the  controlling  elements  being  the  intent 
of  the  parties  and  the  special  circumstances  of  the  case.  The  sub- 
ject has  always  presented  difBculties  in  the  formulation  of  a 
general  rule,  and  especially  in  its  application.  The  books  are  full 
of  inharmonious  decisions.  In  no  state,  however,  have  the  diffi- 
culties been  more  successfully  minimized  than  in  Pennsylvania, 
and  in  no  case  that  I  have  seen  is  there  a  better  generalization 
than  that  by  Agnew,  J.,  in  Streeper  v.  Williams,  48  Pa.  450:  "In 
each  case  we  must  look  at  the  language  of  the  contract,  the  in- 
tention of  the  parties  as  gathered  from  all  its  provisions,  the  sub- 
ject of  the  contract  and  its  surroundings,  the  ease  or  difficulty  of 
measuring  the  breach  in  damages,  and  the  sum  stipulated,  and 
from  the  whole  gather  the  view  which  good  conscience  and  equity 
ought  to  take  of  the  case."  The  only  criticism  to  which  this 
would  seem  to  be  fairly  open  is  that  it  does  not  perhaps  give  suffi- 
cient prominence  to  the  intention  of  the  parties  as  the  controlling 
element,  and  it  should  therefore  be  read  in  connection  with  the 
restatement  of  it  by  our  late  Brother  Clark,  in  March  v.  Alla- 
bough,  103  Pa.  335 :  "The  question  *  *  *  .is  to  be  determined 
by  the  intention  of  the  parties,  drawn  from  the  words  of  the  whole 
contract,  examined  in  the  light  of  its  subject-matter  and  its  sur- 
roundings; and  in  this  examination  we  must  consider  the  rela- 
tion which  the  sum  stipulated  bears  to  the  extent  of  the  injury 
which  may  be  caused  by  the  several  breaches  provided  against, 
the  ease  or  difficulty  of  measuring  a  breach  in  damages,  and  such 
other  matters  as  are  legally  or  necessarily  inherent  in  the  trans- 
action.'' The  intent  of  the  parties  being,  therefore,  the  principal 
object  of  ascertainment,  Greenlcaf  lays  down  certain  rules  as  the 
result  of  the  cases,  and,  among  them,  that  the  sum  is  to  be  taken 
as   a  penalty   "where   the  agreement  contains   several    matters   of 


14S         BONDS,  LIQUIDATED  DAMAGES,  AND  ALTERNATIVE  CONTRACTS 

different  degrees  of  importance,  and  yet  the  sum  named  is  pay- 
able for  the  breach  of  any,  even  the  least."     2  Greenl.  Ev.  §  258. 

This  rule  is  approved  in  Shreve  v.  Brereton,  51  Pa.  175,  and  the 
present  case  falls  exactly  within  it.  The  conditions  of  the  ap- 
pellant's bond  are  two-^First,  he  is  to  "save,  defend,  keep  harm- 
less, and  indemnify  the  said  Emelina  C.  Keck''  from  liability  by 
reason  of  the  assignment  to  him  over  the  head  of  Neiser,  and 
the  termination  of  the  latter's  mining  rights.  This  is  clearly  a 
covenant  for  indemnity  only,  and,  as  no  breach  was  assigned,  need 
not  be  further  discussed.  But,  secondly,  he  is  to  pay  the  royalty 
accruing  in  the  future,  and  "keep  and  perform  all  the  covenants, 
conditions,  and  stipulations  of  the  said  lease  and  assignment.'' 
Turning  now  to  the  lease,  we  find  that  plaintiff's  covenants  with 
Kemmerer,  which  appellant  thus  bound  himself  to  keep  and  per- 
form, were  to  save  harmless  and  indemnify  him  against  all  costs 
and  damages  to  his  neighbors  from  the  washing  of  the  ore,  to 
run  the  water  in  such  places  as  the  lessor  should  order,  to  pay 
a  stipulated  royalty,  to  fill  up  holes  made  and  left  in  the  search 
for  ore,  to  produce  or  pay  royalty  upon  a  minimum  of  one  thou- 
sand tons  a  year,  "to  use  the  old  wagon  road  for  hauling  said 
iron  ore,  and,  in  case  there  are  gates  or  bars  on  said  road,  *  *  * 
to  keep  said  gates  and  bars  in  repair,  *  *  *  ^j-^^j  keep  them 
shut  when  through,"  etc.  The  assignment  adds  to  these  a  cove- 
nant to  pay  plaintiff,  the  assignor,  an  additional  royalty  upon,  a 
sliding  scale  of  the  price  of  ore  per  ton.  No  better  illustration 
of  the  propriety  of  the  rule  referred  to  could  be  stated.  Here  are 
numerous  covenants  of  the  most  varied  kinds  and  importance. 
The  covenants  to  indemnify  against  claims  by  Neiser,  and  against 
damages  to  the  neighbors  b}^  the  operation  of  washing,  are  under- 
takings which  may  be  of  serious  magnitude ;  and  under  Dick  v. 
Gaskill,  2  Whart.  184,  Shreve  v.  Brereton,  51  Pa.  175,  Moore  v. 
Colt,  127  Pa.  289,  18  Atl.  8,  14  Am.  St.  Rep.  845,  and  similar  cases, 
the  recovery  for  a  breach  would  probably  not  be  limited  by  the 
sum  named  in  the  bond.  On  the  other  hand,  the  covenants  to 
fill  up  the  holes  made  in  prospecting  for  ore,  and  to  keep  the 
gates  on  the  old  wagon  road  in  repair  and  shut,  are  against  such 
trivial  inconveniences  that  it  would  savor  of  absurdity  to  suppose 
that  the  parties  meant  to  stipulate  for  $2,000  damages  for  the 
breach  of  any  one  of  them. 

We  are  therefore  of  opinion  that  defendant's  fourth  point,  that 
the  contract  of  the  parties  was  for  a  penalty,  should  have  been 
affirmed.  It  will  not  follow,  however,  as  appellee  seems  to  fear, 
that  her  recovery  must  be  limited  to  the  loss  of  the  royalty  due 
her  at  the  time  of  bringing  suit,  and  that  she  must  bring  repeated 
suits  for  future  failures  to  pay.  The  defendant  has,  by  his  acts, 
disabled  himself  absolutely  and  permanently  from  performance  of 
his  covenants.     Under  such   circumstances,  the  plaintiff  may  sue 


ALTEUXATIVE    CONTUACT3  1*^ 

on  the  contract  from  time  to  time  for  the  royalties  due,  and  for 
such  other  damages  as  she  may  suffer,  or  she  may,  at  her  election 
eat  the  contrac^t  as  rescinded,  and  claim  damages  m  one  action 
for  the   entire  breach.     Judgment  reversed,   and  venire  de  novo 
awarded. 


II.  Alternative  Contracts* 


SMITH  V.  BERGENGREN. 

(Supreme  Judicial  Court  of  Massachusetts,  1891.    153  Mass.  230,  26  N.  E.  GOO, 

10  L.  R.  A.  7G8.) 

Action  bv  J.  Ranlett  Smith  against  Frederick  W.  A.  Bergen- 
eren  for  breach  of  an  agreement  not  to  practice  medicme  in 
Gloucester.  The  court  ruled  that  the  sum  of  $2,000  named  m  the 
agreement,  was  liquidated  damages,  and  defendant  excepts. 

Holmes  J  The  defendant  covenanted  never  to  practice  his 
profession  in  Gloucester  so  long  as  the  plaintiff  should  be  in  prac- 
tice there,  provided,  however,  that  he  should  have  the  right  to  do 
so  at  any  time  after  five  years  by  paying  the  plaintiff  $2,000,  "but 
not  otherwise."  This  sum  of  $2,000  was  not  liquidated  damages ; 
still  less  was  it  a  penalty.  It  was  not  a  sum  to  be  paid  m  case 
the  defendant  broke  his  contract  and  did  what  he  had  agreed  not 
to  do.  It  was  a  price  fixed  for  what  the  contract  permitted  him  to 
do  if  he  paid. 

The  defendant  expressly  covenanted  not  to  return  to  practice 
in  Gloucester  unless  he  paid  this  price.  It  would  be  against  com- 
mon sense  to  say  that  he  could  avoid  the  effect  of  thus  having 
named  the  sum  by  simply  returning  to  practice  without  paying, 
and  could  escape  for  a  less  sum  if  the  jury  thought  the  damage 
done  the  plaintiff  by  his  competition  was  less  than  $2,000  ilie 
express  covenant  imported  the  further  agreement  that  if  the  de- 
fendant did  return  to  practice  he  would  pay  the  price.  No  tech- 
nical words  are  necessary  if  the  intent  is  fairly  to  be  gathered 
from  the  instrument.  St.  Albans  v.  Ellis,  1.6  East,  3d2;  Stevin- 
son's  Case,  1  Leon.  324;   Bank  v.  Marshall,  40  Ch.  Div.  112 

If  the  sum  had  been  fixed,  as  liquidated  damages,  the  defendant 
would  have  been  bound  to  pay  it.  Gushing  v.  Drew,  97  Mass. 
445-  Lynde  v.  Thompson,  2  Allen,  456;  Holbrook  v.  Tobey,  66 
Me  410,  22  Am.  Rep.  581.  But  this  case  falls  within  the  language 
of  Lord'  Mansfield  in  Lowe  v.  Peers,  4  Burrows,  2225,  2229,  that 
if  there  is  a  covenant  not  to  plough,  with  a  penalty,  in  a  lease,  a 

4  For  discussion  of  principles,  see  Hale  on  Dauiif^os  (2d  i:d.)  §  CI. 


150         BONDS,  LIQUIDATED  DAMAGES,  AND  ALTERNATIVE  CONTRACTS 

court  of  equity  will  relieve  against  the  penalty;  "but  if  it  is 
worded  'to  pay  £S  an  acre  for  every  acre  ploughed  up,'  there  is 
no  alternative;  no  room  for  any  relief  against  it;  no  compensa- 
tion. It  is  the  substance  of  the  agreement."  See,  also,  Ropes  v. 
Upton,  125  Mass.  258,  260. 

The  ruling  excepted  to  did  the  defendant  no  wrong.  In  the 
opinion  of  the  majority  of  the  court,  the  exceptions  must  be  over- 
ruled. 


INTEREST  151 

INTEREST 
I.  Pecuniary  Losses — Liquidated  Demands  * 


JUDD  V.  DIKE. 
(Supreme  Court  of  Minnesota,  1SS3.     30  Minn.  380,  15  N.  W.  672.) 

Berry,  J.^  This  is  an  action  for  an  accounting  for  property 
taken  and  held  in  trust  by  defendant  for  plaintiff;  also  for  a  par- 
tition of  a  part  of  such  property  and  the  appointment  of  a  receiver 
to  effect  the  same.     It  is,  therefore,  an  equitable  action.     *     *     * 

The  court  below  finds  that  in  the  course  of  certain  transactions 
relating  to  property  held  by  defendant  in  trust  for  plaintiff,  de- 
fendant received  certain  bonds — a  one-fourth  interest  in  which 
defendant  "held  in  trust"  for  plaintiff;  that  defendant  had  sold 
four  of  the  bonds  for  cash ;  and  that  plaintiff  was  entitled  to  her 
proportionate  share  of  the  sums  received  for  them,  with  interest 
on  the  same  from  the  time  when  such  sums  were  respectively  re- 
ceived. The  defendant,  expressly  admitting  in  his  brief  that  the 
judgment  was  entered  by  a  computation  of  interest  according  to 
the  finding,  insists  that  the  finding  was  wrong,  in  that  interest 
should  have  been  computed  only  from  the  time  when  the  money 
received  for  the  bonds  was  demanded.  We  do  not  agree  to  this. 
It  does  not  lie  in  the  defendant's  mouth  to  deny  that  it  was  his 
duty  to  pay  or  offer  to  pay  to  plaintiff  her  proportionate  share 
of  the  money  realized  from  the  sale  of  the  bonds  as  soon  as  he 
received  it.  If  he  recognized  the  trust  this  duty  followed  as  a 
matter  of  inference.  If  he  repudiated  the  trust,  and  accordingly 
appropriated  the  money  to  his  own  use,  it  was  a  conversion.  In 
either  event  he  should  make  good  the  loss  ensuing  to  plaintiff,  by 
paying  her  interest  from  the  time  when  she  was  entitled  to  the 
money.     Judgment  affirmed. 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  GG. 

2  Part  of  the  opinion  is  omitted. 


152  INTEREST 


II.  Pecuniary  Losses — Unliquidated  Demands  * 


LAYCOCK  V.  PARKER. 
(Supreme  Court  of  Wiscousiu,  1899.     103  ^Yis.  IGl,  79  N.  W.  327.) 

Action  by  Henry  Laycock  against  Anna  E.  Parker  to  foreclose 
a  mechanic's  lien.  The  contract  under  which  the  building-  was 
erected  provided  that  the  work  should  be  completed  by  Septem- 
ber 15,  1893;  that  alterations  should  be  made  only  on  written  order 
of  the  architects,  and  that  the  value  of  the  work  added  or  omitted 
should  be  computed  and  the  amounts  as  ascertained  added  to  or 
deducted  from  the  contract  price  according  to  circumstances ;  that 
the  contract  price  should  be  $18,000.  The  building  was  substan- 
tially completed  January  26,  1894.  The  last  work  was  done  May 
31,  1894,  up  to  which  time  the  payments  made  aggregated  $12,995. 
At  the  trial  the  court  allowed  the  plaintiff  for  balance  due  on  the 
contract  $5,005,  and  for  extras,  $1,757;  and  allowed  defendant  as 
counterclaim  for  omissions  $469,  and  for  damages  for  delay  $283, 
resulting  in  a  net  finding  for  plaintiff  for  $6,009,  for  which  plaintiff 
had  judgment  and  an  adjudication  that  he  have  a  lien  on  the  prem- 
ises.    From   this  judgment   defendant  appeals. 

Dodge,  J.*  *  *  *  Appellant  asserts  error  in  that  interest 
was  allowed  plaintiff  on  the  balance  found  his  due  from  the  com- 
mencement of  the  suit.  The  question  of  interest  is  one  much  more 
often  passed  upon  than  carefully  considered  by  courts.  It  is  usu- 
ally presented  only  incidentally  to  much  more  important  issues, 
and  often  decided  one  way  or  the  other  at  the  close  of  exhaustive 
investigation  of  the  other  questions,  and  with  the  perhaps  uncon- 
scious feeling  that  it  is  not  of  sufficient  magnitude  to  justify  fur- 
ther serious  labor.  Again,  the  elements  involved  in  determining 
the  question  are  many  of  them  so  elastic  in  their  application  that 
cases  may  be  rightly  resolved  in  different  ways  without  the  dis- 
tinction being  apparent  from  the  statement  of  them.  The  ques- 
tion is  also  one  of  those  upon  which  the  old  reasons  and  prin- 
ciples have  been  departed  from  in  deference  to  modern  business 
methods  and  views  of  commercial  equity,  and  upon  which  the  law 
has  progressed  in  a  steady  development  away  from  the  early  prec- 
edents.    Sedg.  Meas.  Dam.  §  297. 

Anciently  interest,  called  ''usury,"  was  an  abhorrence  to  the 
law,  and  a  contract  therefor  was  not  only  not  enforceable,  but 
criminal.     Adriance  v.  Brooks,  13  Tex.  279,  281.     The  increase  of 

8  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  67-70. 
4  Tart  of  tlie  opinion  is  omitted  and  tlie  statement  of  facts  is  rewritten. 


PECUNIARY   LOSSES — UNLIQUIDATED    DEMANDS  loJ? 

the  importance  of  personal  property  and  commerce,  and  the  grow- 
ing? recognition  of  the  fact  that  the  use  of  another's  money  was 
valuable  to  the  user,  and  a  legitimate  subject  for  compensation  to 
the  owner,  at  last  forced  the  law  to  accede  thereto,  and  to  yield 
enforceability  to  express  contracts  to  pay  interest.  Lewis'  Bl. 
Comm.  bk.  2,  p.  454.  This  concession  was  followed  by  a  recogni- 
tion of  the  fact  that  a  refusal  to  pay  money  legally  due,  like  a 
refusal  to  perform  any  other  legal  duty  to  another,  merited  con- 
demnation and  punishment  from  the  courts,  and  the  doctrine  of 
interest  as  damages,  in  absence  of  express  agreement,  became  es- 
tablished; but  it  was  allowed  as  damages  and  by  way  of  punish- 
ment to  a  wrongdoer.  The  idea  of  compensation  to  him  who  had 
been  deprived  of  the  use  of  his  money  may  have  been  present,  but 
was  never  prominent,  while  the  thought  that  the  debtor  by  in- 
terest was  only  paying  for  value  in  fact  received  by  him  from  the 
use  of  the  money  of  another  is  hardly  suggested,  as  in  recent  cas- 
es. Crescent  ^lin.  Co.  v.  Wasatch  Min.  Co.,  151  U.  S.  317,  323, 
14  Sup.  Ct.  348,  38  L.  Ed.  177,  as  compared  with  Curtis  v.  In- 
nerarity,  6  How.  146,  154,  12  L.  Ed.  380.  The  allowance  of  in- 
terest as  damages  was,  as  might  have  been  expected  in  view  of 
the  principle  on  which  it  was  founded,  confined  to  strictly  liq- 
uidated demands.  Being  punishment,  it  should  not  be  imposed  if 
there  were  any  uncertainty  as  to  defendant's  duty  to  excuse  non- 
performance of  it. 

As  the  lending  and  hiring  of  money  increased  more  and  more 
with  the  development  of  commerce  and  credits,  there  developed  a 
growing  sense  of  the  equitable  character  of  interest,  and  step  by 
step  that  equity  in  individual  cases  led  to  relaxations  of  the  strict 
rule  demanding  absolute  liquidation  of  a  demand  to  justify  inter- 
est allowance  by  courts;  American  courts  taking  the  lead  in  de- 
veloping this  idea.  Bromfield  v.  Little,  Ouincy  (Mass.)  108; 
Van  Rensselaer  v.  Jewett,  2  N.  Y.  141.  Meanwhile  legislatures  as 
well  as  courts  were  yielding  to  the  sentiment  of  the  community, 
and,  from  the  original  statutes,  guardedly  'permitting  express  con- 
tracts for  limited  rates  of  interest,  they  progressed  to  that  enacted 
in  New  York  abou  1829,  which  is  practically  identical  with  our 
own  existing  statute,  originally  adopted  in  the  revision  of  1858, 
whereby  the  law  itself  fixes  a  rate  to  be  paid  in  the  absence  of  any 
agreement  therefor,  and  extends  its  application  not  only  to  money 
due  upon  "note  or  other  contract,"  as  in  our  prior  statutes  (chaj)- 
ter  45,  Rev.  St.  1849),  but  to  loan  or  forbearance  of  any  money, 
goods,  or  things  in  action.  Rev.  St.  1898.  §  1688.  Such  a  change 
in  the  statute  is  certainly  significant,  and  may  well  justify  a  diilcr- 
ence  in  states  where  it  is  in  force  as  to  the  class  of  demands  which 
draw  interest  without  express  agreement  therefor. 

In   New   York,   whence   we   adopted   section    1688  in   1858,   Van 
Rensselaer  v.  Jewett,  supra,  and  Dana  v.  Fiedler,  12  N.  Y.  40,  62 


154  INTEREST 

Am.  Dec.  130,  had  been  decided  before  that  time,  and  had  fully 
recognized  an  intermediate  class  of  demands  between  strictly  liq- 
uidated ones,  like  a  promissory  note  for  a  specified  sum,  and  those 
wholly  unliquidated,  like  breach  of  promise  to  marry,  or  such  torts 
as  slander  and  libel,  and  had  extended  to  some  of  that  class  of 
demands  which,  for  convenience,  we  may  term  liquidable,  the 
interest-earning  right,  independently  of  any  agreement.  Sedg. 
Meas.  Dam.  §§  299,  300. 

In  Van  Rensselaer  v.  Jewett,  supra,  which  was  an  action  to  re- 
cover damages  for  failure  to  pay  as  rent  each  year  18  bushels  of 
wheat,  4  fat  hens,  and  1  day's  service,  with  carriage  and  horses, 
the  court  (Bronson,  J.)  said:  "It  was  decided  in  1806,  without 
assigning  any  reason  for  the  judgment,  that  interest  was  not  re- 
coverable in  a  case  of  this  kind.  Van  Rensselaer  v.  Platner,  1 
Johns.  (N.  Y.)  276.  But  since  that  time  the  supreme  court  has 
deliberately  held,  on  three  several  occasions,  including  the  pres- 
ent one,  that  interest  is  recoverable  in  such  a  case.  Lush  v.  Druse, 
4  Wend.  (N.  Y.)  313;  Van  Rensselaer  v.  Jones,  2  Barb.  (N.  Y.) 
643.  The  principle  to  be  extracted  from  these  decisions  may  be 
stated  as  follows :  Whenever  a  debtor  is  in  default  for  not  paying 
money,  delivering  property,  or  rendering  services  in  pursuance  of 
his  contract,  justice  requires  that  he  should  indemnify  the  cred- 
itor for  the  wrong  which  has  been  done  him ;  and  a  just  indem- 
nity, though  it  may  sometimes  be  more,  can  never  be  less  than 
the  specified  amount  of  money,  or  the  value  of  the  property  or 
services  at  the  time  they  should  have  been  paid  or  rendered,  with 
interest  from  the"  time  of  the  default  until  the  obligation  is  dis- 
charged. And,  if  the  creditor  is  obliged  to  resort  to  the  courts 
for  redress,  he  ought  in  all  such  cases  to  recover  interest,  in  ad- 
dition to  the  debt,  by  way  of  damages.  It  is  true  that,  on  an 
agreement  like  the  one  under  consideration,  the  amount  of  the 
debt  can  only  be  ascertained  by  an  inquiry  concerning  the  value 
of  the  property  and  services.  But  the  value  can  be  ascertained, 
and,  when  that  has  been  done,  the  creditor,  as  a  question  of  prin- 
ciple, is  just  as  plainly  entitled  to  interest  after  the  default  as  he 
would  be  if  the  like  sum  had  been  payable  in  money.  The  Eng- 
lish courts  do  not  allow  interest  in  such  cases,  and  I  feel  some 
difficulty  in  saying  that  it  can  be  allowed  here,  without  the  aid  of 
an  act  of  the  legislature  to  authorize  it.  But  the  courts  in  this 
and  other  states  have  for  many  years  been  tending  to  the  conclu- 
sion, which  we  have  finally  reached,  that  a  man  who  breaks  his 
contract  to  pay  a  debt,  whether  the  payment  was  to  be  made 
in  money,  or  in  any  thing  else,  shall  indemnify  the  creditor,  so 
far  as  that  can  be  done,  by  adding  interest  to  the  amount  of  dam- 
age which  was  sustained  on  the  day  of  the  breach.  The  rule  is 
just  in  itself;  and,  as  it  is  now  nearly  nineteen  years  since  the 
point  was  decided  in  favor  of  the  creditor,  and  eight  out  of  nine 


PECUNIARY    LOSSES — UNLIQUIDATED   DEMANDS  155 

judges  of  the  supreme  court  have  at  different  times  concurred  in 
that  opinion,  we  think  the  question  should  be  regarded  as  set- 
tled." 

The  principle  of  this  case  has  been  reaffirmed  in  New  York 
many  times.  ^^IcAIahon  v.  Railroad  Co.,  20  N.  Y.  463;  McCollum 
V.  Seward,  62  N.  Y.  316,  and  Mercer  v.  Vose,  ^7  N.  Y.  56,  were 
actions  on  quantum  meruit  to  recover  for  services;  held,  interest 
recoverable.  Other  cases  in  New  York  are  Newell  v.  Wheeler, 
36  N.  Y.  244;  Adams  v.  Bank,  36  N.  Y.  255 ;  Mygatt  v.  Wilcox,  45 
N.  Y.  306,  6  Am.  Rep.  90;  Smith  v.  Velie,  60  N.  Y.  106;  De  La- 
vallette  v.  Wendt,  75  N.  Y.  579,  31  Am.  Rep.  494;  Wilson  v.  City 
of  Troy,  135  N.  Y.  104,  32  N.  E.  44,  18  L.  R.  A.  449,  31  Am.  St. 
Rep.  817;  Mansfield  v.  Railroad  Co.,  114  N.  Y.  331,  21  N.  E.  735, 
1037,  4  L.  R.  A.  566;  Gray  v.  Railway  Co.,  157  N.  Y.  483,  52  N. 
E.  555.  And  the  rule  in  that  state  may  be  stated  to  be  that  in- 
terest is  allowable  upon  a  demand,  the  amount  of  which  could 
be  ascertained  by  computation,  together  with  a  reference  to  rea- 
sonably well  established  market  values,  because  such  values  in 
many  cases  are  so  nearly  certain  that  it  would  be  possible  for  the 
debtor  to  obtain  some  approximate  knowledge  of  how  much  he 
was  to  pay;  or,  to  quote  from  Mansfield  v.  Railroad  Co.,  supra, 
it  is  extended  to  actions  to  recover  damages  for  breach  of  con- 
tract, "if  the  means  are  accessible  to  the  party  sought  to  be  charged 
of  ascertaining  the  amount,  by  computation  or  otherwise,  to  which 
the  other  party  is  entitled."  This  general  rule  has  received  ap- 
proval from  many  other  courts  as  well.  Spalding  v.  Mason,  161 
U.  S.  375,  396,  16  Sup.  Ct.  592,  40  L.  Ed.  738 ;  Kuhn  v.  McKay,  7 
Wyo.  42,  51  Pac.  205.  As  would  be  expected,  courts  have  varied 
greatly  in  applying  these  rules  to  individual  cases;  but  it  may 
be  safely  said  that  the  tendency  has  been  in  favor  of  allowing  in- 
terest rather  than  against  it,  and  that  the  degree  of  certainty  or 
ease  with  which  the  approximate  amount  can  be  ascertained  has 
grown  less  and  less  stringent. 

In  Wisconsin,  without  perhaps  so  carefully  laying  down  general 
rules,  the  court  has  in  a  large  measure  followed  the  lines  of  the 
New  York  decisions.  *  *  *  Marsh  v.  Eraser,  17  Wis.  152,  is 
perhaps  the  most  quoted  case  in  Wisconsin,  and,  like  the  utter- 
ances of  the  Delphic  oracle,  has  been  made  the  basis  for  antago- 
nistic conclusions.  That  was  a  suit  on  quantum  meruit  for  labor 
and  services  in  moving  a  building,  with  no  time  of  payment  fixed, 
and  no  evidence  of  demand.  The  court  held  the  allowance  of  in- 
terest from  the  time  of  the  performance  of  the  services  error,  upon 
the  ground  however  that  no  time  of  payment  was  fixed,  and  no 
demand  had  been  made.  *  *  *  In  Yates  v.  Shepardson,  39 
Wis.  173,  which  was  a  suit  for  professional  services,  disputed  as 
to  rendition,  character,  and  value,  it  was  held  that  interest  ran 
from  the  commencement  of  the  suit.     There  was  no  evidence  of 


156  INTEREST 

any  earlier  demand.  The  court  said,  by  Lyon,  J.,  who  partici- 
pated in  decision  of  Marsh  v.  Fraser:  "By  the  well-settled  rules 
of  law  on  the  subject  of  interest,  which  are  stated  by  the  chief 
justice  in  Marsh  v.  Fraser,  Z7  Wis.  149,  no  interest  can  be  al- 
lowed on  the  account  before  the  action  was  commenced." 

In  Tucker  v.  Grover,  60  Wis.  245,  19  N.  W.  62,  a  claim  for  quan- 
tum meruit  in  investigating  pine  lands  (which  the  court  described 
as  "an  uncertain  one,  resting  in  quantum  meruit,  being  always 
denied  and  contested  by  the  defendant,  no  account  thereof  ren- 
dered nor  any  demand  made  for  any  certain  sum,  and,  of  course, 
not  susceptible  of  computation  merely  to  render  it  certain,  it  was 
clearly  unliquidated")  interest  was  held  recoverable  from  the  com- 
mencement of  the  suit.  Gammon  v.  Abrams,  53  Wis. '323,  10  N. 
W.  479,  was  a  suit  for  the  reasonable  value  of  a  reaper,  both  the 
liability  and  the  value  being  controverted.  The  court  said  that 
interest  was  properly  allowable  from  the  commencement  of  the 
suit,  and  it  makes  no  difference  that  such  value  had  to  be  as- 
certained by  evidence.  *  *  *  Farr  v.  Semple,  81  Wis.  230,  51 
N.  W.  319,  was  an  action  for  the  reasonable  value  of  the  services 
of  a  nurse.  The  court  held  interest  should  be  allowed  from  the 
rendition  of  account  and  demand  of  payment.     *     *     * 

On  the  other  hand,  in  Shipman  v.  State,  44  Wis.  458,  which  was 
a  claim  for  reasonable  value  of  services  as  an  architect,  the  court 
held  interest  not  recoverable,  saying:  "As  between  individuals, 
the  better  rule  is  that  when  the  right  of  a  party  to  recover  com- 
pensation is  doubtful,  and  is  contested  on  reasonable  grounds,  and 
the  amount  due  him  requires  to  be  adjusted  by  proceedings  in  the 
suit,  interest  is  only  recoverable  after  the  right  of  a  party  to  re- 
cover and  the  amount  of  the  recovery  has  been  determined." 
Martin  v.  State,  51  Wis.  407,  8  N.  W.  248,  was  a  suit  for  general 
damages  for  preventing  plaintiff's  completion  of  a  contract  for 
the  improvement  of  Fox  river,  including  loss  of  prospective  prof- 
its, and  the  court  held  interest  not  recoverable  until  the  amount 
had  been  liquidated  by  an  award.  In  State  v.  Warner,  55  Wis. 
271,  9  N.  W.  795,  and  13  N.  W.  255,  which  was  for  reasonable  val- 
ue of  professional  services,  the  court  held  interest  not  recoverable, 
saying  that  the  amount  would  have  depended  on  "proofs  showing 
what  they  were  reasonably  worth,  and  upon  the  evidence  it  would 
be  a  question  of  fact  for  the  jury.  We  are  unable  to  distinguish 
this  case  from  Marsh  v.  Fraser,  where  it  was  held  that  plaintiff 
could  not  recover  interest.'' 

There  is  thus  a  clear  conflict  in  the  Wisconsin  cases  in  the  ap- 
plication of  whatever  general  rules  govern  the  question,  and  those 
general  rules  have  not  been  set  forth,  except  in  a  very  limited 
way  in  Marsh  v,  Fraser,  where  the  question  was  rather  as  to 
whether  interest  could  run  before  demand  than  whether  it  might 
have  run  upon  the  claim  there  presented,  if  a  proper  demand  had 


PECUXIAKT    LOSSES — UNLIQUIDATED    DEMANDS  luT 

been  made.  Dismissing  from  consideration  ^lartin  v.  State,  where 
the  claim  was  clearly  unliquidable,  being  for  general  damages,  such 
as  loss  of  profits,  etc.,  it  is  obvious  that  the  reasons  assigned  for 
refusal  of  interest  in  Shipman  v.  State  and  State  v.  Warner  would 
have  equally  denied  such  allowance  in  Farr  v.  Semple,  Gammon  v. 
Abrams,  Tucker  v.  Grover,  and  Yates  v.  Shepardson,  unless  there 
were  elements  of  uncertainty  or  distinction  not  set  forth  in  the 
two  state  cases,  such,  for  example,  as  that  there  was  no  market 
value  ascertainable  for  the  services  there  involved,  or  because  no 
officer  of  the  state  had  any  lawful  power  to  authoritatively  ascer- 
tain and  settle  the  amount  due. 

We  think,  notwithstanding  these  two  individual  cases,  that  the 
great  weight  of  authority  is  in  favor  of  a  rule  substantially  such 
as  that  adopted  in  New  York,  as  above  stated.  The  true  prin- 
ciple, which  is  based  on  the  sense  of  justice  in  the  business  com- 
munity and  on  our  statute,  is  that  he  who  retains  money  which 
he  ought  to  pay  to  another  should  be  charged  interest  upon  it. 
The  difficulty  is  that  it  cannot  well  be  said  one  ought  to  pay  mon- 
ey, unless  he  can  ascertain  how  much  he  ought  to  pay  with  rea- 
sonable exactness.  Mere  difference  of  opinion  as  to  amount  is, 
however,  no  more  a  reason  to  excuse  him  from  interest  than  differ- 
ence of  opinion,  whether  he  legally  ought  to  pay  at  all,  which  has 
never  been  held  an  excuse.  When  one  is  held  liable,  say,  on  a 
promissory  note,  to  which  his  defense  has  raised  a  doubtful  ques- 
tion of  law,  he  must  pay  the  interest  with  it,  because  theoretically 
at  least,  there  was  a  fixed  standard  of  legal  obligation,  which,  if 
correctly  applied,  would  have  made  his  duty  clear.  So,  if  there 
be  a  reasonably  certain  standard  of  measurement  by  the  correct 
application  of  which  one  can  ascertain  the  amount  he  owes,  he 
should  equally  be  held  responsible  for  making  such  application  cor- 
rectly and  liable  for  interest  if  he  does  not.  The  New  York  courts 
have  adopted  as  designation  of  such  a  standard  "market  value,'' 
and  in  a  broad  use  of  the  term  this  is  perhaps  the  safest  test  to 
apply.  It  must  not,  however,  be  restrained  to  definite  quotations 
on  a  board  of  trade,  or  to  such  degree  of  certainty  that  no  difference 
of  opinion  could  exist.  If  one  having  a  commodity  to  purchase 
Or  certain  services  to  hire  can  by  inquiry  among  those  familiar  with 
the  subject  learn  approximately  the  current  prices  which  he  would 
have  to  pay  therefor,  a  market  value  can  well  be  said  to  exist,  so 
that  no  serious  inequity  will  result  from  the  application  of  the 
foregoing  rule  to  those  who  desire  to  act  justly;  especially  in  view 
of  the  other  rule  of  law  that  a  debtor  can  always  stop  interest  by 
making  and  keeping  good  an  unconditional  tender,  thus  giving  him 
a  substantial  advantage  over  a  creditor,  who  has  no  such  option. 

Applying  the  rule  thus  defined  to  the* facts  in  this  case,  there 
is  no  escape  from  the  conclusion  reached  by  the  court  below.  The 
bulk  of  the  recovery  is  for  the  contract  price  of  $18,000,  less  the 


158  INTEREST 

payments  made,  which  the  court  found  to  be  $439.62  greater  than 
plaintiff  admitted  in  his  complaint ;  such  excess  apparently  being 
made  up  of  items  which  belong  rather  to  the  class  of  counterclaims 
than  payments.  The  balance  of  the  judgment  is  made  up  of  plain- 
tiff's extras,  less  the  defendant's  counterclaims,  viz.  $1,004.43.  Of 
this  every  item  was  material  or  labor,  which  was  proved  to  have 
a  reasonably  certain  market  value  at  Eau  Claire,  so  that  from  the 
statements  of  witnesses  familiar  therewith  the  court  was  able  to 
fix  such  value,  and  the  defendant  could  have  done  so  had  he  made 
an  honest  effort.  They  involved  none  of  those  elements  which 
have  been  held  to  make  the  claim  not  only  wholly  unliquidated,  but 
unliquidable — no  claim  for  general  damages,  nor  for  loss  of  profits, 
as  in  some  of  the  cases ;  nor  even  for  professional  services,  which 
in  some  cases  (Swinnerton  v.  Development  Co.,  112  Cal.  375,  44 
Pac.  719)  have  been  held  to  be  without  a  sufficiently  certain  mar- 
ket value,  though  in  other  cases  the  contrary  has  been  held  (Adams 
v.  Bank,  supra;  Mercer  v.  Vose,  supra;  Yates  v.  Shepardson, 
supra). 

The  plaintiff's  claims  then  being  such  as  may  draw  interest,  the 
next  question  is,  from  what  date?  And  about  this  question  some 
confusion  has  been  thrown  by  the  hasty  disposal  of  interest  claims ' 
and  inconsiderate  remarks  of  courts.  The  rule  of  course  is  that 
the  debtor  should  pay  interest  from  the  time  when  he  ought  to 
have  paid  the  debt.  That  time  may  be  fixed  by  agreement,  and 
that  agreement  may  be  implied  from  known  customs  or  other 
things.  It  may  also  be  fixed  by  law,  as  in  State  v.  Guenther,  87 
Wis.  676,  58  N.  W.  1106,  or  Insurance  Co.  v.  Fricke,  99  Wis.  367, 
74  N.  W.  372,  and  78  N.  W.  407,  41  L.  R.  A.  557,  in  which  event 
the  interest  runs  from  the  date  so  fixed.  If  not  fixed,  interest  will 
not  commence  to  run  until  the  creditor  makes  it  the  duty  of  the 
debtor  to  pay  by  an  adequate  demand  that  he  do  so,  which  demand 
should  be  sufficiently  specific  to  inform  the  debtor  of  the  claim 
made,  so  that  he  can  ascertain  therefrom  the  amount  he  ought  to 
pay,  by  application  of  the  standard  above  set  forth.  When  so  noti- 
fied of  what  his  creditor's  claim  is,  and  that  he  is  then  required  to 
pay  it,  he  is  thenceforward  wrongfully  withholding  money  from 
that  creditor.  Sedg.  M.eas.  Dam.  §§  302,  315;  Porley,  Interest,  § 
29;  Marsh  v.  Fraser,  supra;  Farr  v.  Semple,  supra;  Drug  Co.  v. 
Hvambsahl,  supra  [92  Wis.  62,  65  N.  W.  873]  ;  Niblack  v.  Bank, 
169  111.  517,  48  N.  E.  438,  39  L.  R.  A.  159,  61  Am.  St.  Rep.  203; 
White  V.  Miller,  78  N.  Y.  393,  398,  34  Am.  Rep.  544;  Robbins  v. 
Carll,  93  N.  Y.  655. 

Another  date  has  crept  into  the  decisions  of  Wisconsin  and  many 
other  states  as  that  at  which  interest  on  unliquidated  (but  liquid- 
able)  claims  and  open  accounts  should  commence,  to  wit,  the  com- 
mencement of  the  suit.  An  examination  of  all  of  these  decisions, 
with  a  few  unimportant  exceptions,  will  make  apparent,  however, 


PECUNIARY   LOSSES — UNLIQUIDATED    DEMANDS  159 

that  the  commencement  of  suit  is  only  significant  because  in  and 
of  itself  it  constitutes  a  demand.  On  principle,  it  can  have  no  other 
force.  If  a  proper  and  lawful  demand  for  payment  cannot  put  the 
debtor  in  default,  obviously  the  commencement  of  a  suit  cannot. 
The  one  as  fully  informs  defendant  of  the  rights  claimed  by  plain- 
tiff as  the  other.  It  would  force  litigation  if  a  different  rule  were 
adopted.  If  regard  for  the  convenience  of  the  debtor  or  desire  to 
negotiate  would  lead  the  creditor  to  grant  delay,  public  policy 
would  dictate  that  he  have  such  opportunity  without  loss  of  in- 
terest, rather  than  that  litigation  be  forced  upon  him  to  save  that 
right.  See  Wisconsin  decisions  hereinbefore  mentioned;  also, 
Hawley  v.  Tesch,  88  Wis.  213,  242,  59  N.  W.  670:  Sedg.  Meas.  Dam. 
§  315;  Mercer  v.  Vose,  supra;  Dempsey  v.  Schawackcr,  140  Mo. 
680,  38  S.  W.  954,  and  41  S.  W.  1100;  Quin  v.  Distilling  Co.,  171 
Mass.  283,  50  N.  E.  637. 

We  hold,  therefore,  that  the  claim  of  the  plaintiff  in  this  case 
was  capable  of  ascertainment  by  defendant,  after  its  presentation, 
by  reference  to  reasonably  certain  market  values  of  the  various 
items,  that  it  was  duly  and  adequately  presented  and  its  payment 
demanded  before  the  suit  was  commenced,  and  that  plaintiff  was 
entitled  to  interest  from  the  time  of  such  demand,  apd  no  error 
prejudicial  to  defendant  was  committed  in  the  allowance  made  by 
the  judgment.  The  judgment  is  modified,  *  *  *  and,  as  so 
modified,  is  affirmed. 


FELL  V.  UNION  PACIFIC  RY.  CO. 
(Supreme  Court  of  Utah,   1907.     32  Ututi,  101,  88  Pac.  1003.) 

Action  by  A.  G.  Fell  against  the  Union  Pacific  Railway  Com- 
pany to  recover  damages  for  injury  to  live  stock  in  transit.  By 
reason  of  delay  the  stock  was  without  food  or  water  for  several 
days,  as  a  result  of  which  many  animals  died  and  others  were  so 
injured  and  reduced  in  weight  that  plaintiff  suffered  loss.  The 
court  entered  judgment  for  the  amount  found  as  damages  and 
allowed  interest  thereon  from  the  date  of  demand  on  the  railway 
company  for  damages.    The  defendant  appeals. 

Frick,  J,5  *  *  *  The  next  and  only  other  assignment  of 
error  relates  to  the  allowance  of  interest  by  the  court  on  the 
amount  of  damages  found  to  have  been  sustained  by  the  respond- 
ent. Appellant  asserts  that,  this  being  an  action  for  unliquidated 
damages  sounding  in  tort,  therefore  interest  cannot  legally  be  al- 
lowed until  the  loss  or  damage  is  ascertained  at  the  trial.  It  is 
further  contended  that  such  is  the  law  of  this  state  as  appears  from 
the  decisions  of  this  court. 

•  e  Part  of  the  opiuiou  is  oiuitled  und  the  statement  of  facts  is  rewritten. 


100  INTEREST 

Before  referring  to  our  own  decisions  upon  this  question,  we 
shall  examine  the  qviestion  in  the  light  of  the  authorities.  While 
it  is  true  that  this  is  an  action  for  a  tort,  and  that  the  damages  were 
unliquidated,  the  cause  of  action,  nevertheless,  arose  out  of  a  con- 
tract for  carriage ;  that  is,  the  reciprocal  rights  and  duties  arising 
out  of  the  relation  of  carrier  and  shipper  arose  by  virtue  of  a  con- 
tract. Both  parties  insist  on  this  in  their  pleadings,  and  such,  in 
the  nature  of  things,  must  be  so.  But,  since  appellant  acted  in 
the  capacity  of  a  common  carrier,  its  duties  and  respondent's  rights 
were  governed  by  law,  and,  as  there  is  no  question  presented  for 
review  in  respect  to  the  modification  of  the  law  by  the  contract, 
we  must  treat  this  case,  for  the  purposes  of  this  decision,  upon 
the  law  applicable  to  a  common  carrier  of  live  stock  regardless  of 
any  special  contract.  In  view  of  the  law,  therefore,  applicable  to 
common  carriers,  where,  through  their  negligence,  a  shipper  sufifers 
injury  and  damages  to  his  property  while  in  transit,  or  for  negli- 
gent delay  in  transportation  and  delivering  the  same  at  the  place 
of  destination,  what  is  the  prevailing  rule  as  to  the  amount  of  dam- 
ages and  the  allowance  of  interest? 

In  the  case  of  New  York,  etc.,  Ry.  Co.  v.  Estill,  147  U.  S.  at 
page  622,  13  Sup.  Ct.  at  page  456  {c>7  L.  Ed.  292),  the  United  States 
Supreme  Court,  in  a  case  for  injury  to  live  stock  while  in  transit, 
states  the  general  rule  as  to  the  measure  of  damages  in  the  follow- 
ing language:  "It  is  well  settled  as  a  general  rule  that  the  meas- 
ure of  damages  in  a  case  of  a  common  carrier  is  the  value  of  the 
goods  intrusted  to  it  for  transportation,  with  interest  from  the 
time  when  they  ought  to  have  been  delivered'' — citing  among  other 
authorities,  Hutchinson  on  Carriers  (2d  Ed.)  §  771,  and  1  Suther- 
land on  Damages,  629.  And  the  court  then  proceeds  further:  ''But 
when  the  matter  appears  to  have  been  regulated  by  statute  in  the 
state,  and  the  statute  has  been  interpreted  by  its  highest  court,  the 
regulation  of  the  statute  will  be  followed  in  the  courts  of  the  United 
States."  This  was  done  in  that  case,  and  interest  was  not  allowed 
only  because  the  Supreme  Court  of  Missouri,  under  the  statute 
of  that  state,  held  that  interest  is  not  permitted  in  case  of  unliqui- 
dated damages,  except  in  special  cases.  The  rule  is  also  stated 
by  the  same  court,  in  the  case  of  Mobile  &  M.  Rv.  Co.  v.  Jurey, 
111  U.  S.  584,  4  Sup.  Ct.  566,  28  L.  Ed.  527,  where,'in  the  syllabus, 
it  is  said :  "The  measure  of  damages  in  an  action  against  a  common 
carrier  for  loss  of  goods  in  transit  is  their  value  at  the  point  of 
destination,  with  legal  interest.'' 

In  the  case  of  WHson  v.  Troy,  32  N.  E.  44,  135  N.  Y.  96,  18  L. 
R.  A.  449,  31  Am.  St.  Rep.  817,  the  Court  of  Appeals  of  New  York, 
in  discussing  the  question  now  under  consideration,  at  page  46  of 
32  N.  E.,  page  457  of  18  L.  R.  A.  (135  N.  Y.  96,  31  Am.  St.  Rep. 
817),  says:  "It  is  difficult  to  perceive  any  sound  distinction  be- 
tween a  case  where  the  defendant  converts  or  carries  away  the 


PECUNIARY    LOSSES — UNLIQUIDATED    DEMANDS  161 

plaintiff's  horse  and  a  case  where,  through  negligence  on  his  part, 
the  horse  is  injured  so  as  to  be  valueless.  There  is  no  reason  ap- 
parent for  a  different  rule  of  damages  in  the  one  case  than  in  the 
other."  Quite  true  that,  notwithstanding  the  court  here  clearly 
points  our  that  there  can  be  no  distinction  in  reason,  the  courts 
of  New  York,  in  deference  to  early  decisions,  still  cling  to  the  old 
theory  that  in  certain  cases  it  is  for  the  jury  to  say  whether  in- 
terest shall  be  allowed  or  not.  The  question,  however,  is  not  rele- 
gated to  the  jury  in  cases  like  the  one  at  bar,  even  in  New  York, 
as  is  manifest  from  the  case  of  Dana  v.  P'iedler,  12  N.  Y.  40-50, 
62  Am.  Dec.  130.     *     *     * 

If  we  assume  the  case  at  bar  to  be  one  commonly  called  a  case 
of  pure  tort  for  injury  to  or  destruction  of  personal  property 
through  ordinary  negligence,  still  the  respondent  was  entitled  to 
interest  according  to  the  great  weight  of  authority.  In  22  Cyc. 
1500,  the  following  is  stated  to  be  the  law  upon  the  subject  of  al- 
lowing interest  for  torts  to  property:  "While  it  has  been  laid  down 
in  many  cases  that  interest  will  not  be  allowed  on  damages  re- 
covered for  torts  to  property  unless  the  defendant  has  derived 
some  benefit  from  his  tort,  or  has  been  guilty  of  gross  negligence, 
the  general  rule  supported  by  the  great  weight  of  authority  is 
that  in  cases  of  torts  to  property  interest  on  the  damages  will  be 
allowed  as  a  part  of  the  damages  and  as  an  approximately  uniform 
measure  of  compensation."  This  text  is  amply  sustained  by  the 
following  authorities:  Woodland  v.  U.  P.  Ry.  Co.,  27  Utah,  543, 
26  Pac.  298;  Rhemke  v.  Clinton,  2  Utah,  230:  Varco  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  30  Minn.  18,  13  N.  W.  921 ;  Railway  Co.  v. 
Joachimi,  58  Tex.  456;  Fremont,  E.  &  M.  V.  Ry.  Co.  v.  Marley, 
25  Neb.  138,  40  N.  W.  948,  13  Am.  St.  Rep.  482;  U.  P.  Ry.  Co. 
V.  Ray,  46  Neb.  750,  65  N.  W.  77Z\  Kendrick  v.  Towle,  60  Mich. 
363,  27  N.  W.  567,  1  Am.  St.  Rep.  526;  Burdick  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  87  Iowa,  384,  54  N.  W.  439;  Johnson  v.  Chicago 
&  N.  W.  Ry.  Co.,  77  Iowa,  666,  42  N.  W.  512;  Dean  v.  Chicago 
&  N.  W.  Ry.  Co.,  43  Wis.  305 ;  Georgia  P.  Ry.  Co.  v.  Fullerton, 
79  Ala.  298;  Frazer  v.  Bigelow  C.  Co.,  141  Mass.  126,  4  N.  E.  620; 
Regan  v.  New  York  &  N.  E.  Ry.  Co.,  60  Conn.  124,  22  Atl.  503, 
25  Am.  St.  Rep.  306;   Schmidt  v.  Nunan,  63  Cal.  371. 

While  the  foregoing  by  no  means  constitute  all  the  authorities 
that  could  be  cited  upon  the  proposition,  they  are  quite  sufficient 
to  show  that  the  rule  has  become  general,  and  that  the  allowance 
of  interest  in  cases  of  torts  to  property  is  in  harmony  with  the 
trend  of  modern  authority.  It  is  quite  true  that  there  are  cases 
against  this  rule,  but  they  are  not,  as  we  conceive,  based  on  either 
good  reason  or  good  logic.  The  rule  adhered  to  in  the  Kansas 
and  other  like  cases,  as  instances  where  interest  is  allowed  if  it 
uppears  that  the  person  com  milling  the  wrong  has  to  some  extent 
Cooi.KT  Dam. — 11 


162  INTEREST 

been  benefited  from  it,  is,  to  our  minds,  manifestly  unjust.  In  such 
cases  interest  is  not  allowed  as  compensation  at  all,  but  upon  the 
sole  ground  that  the  person  in  the  wrong  must  yield  up  the  bene- 
fits derived  by  him  to  the  one  to  whom  they  belong  by  reason  of 
ownership.  It  is  a  matter  of  simple  restoration  of  what  has  been 
withheld  without  adding  anything  for  the  use.  It  is  only  a  mild 
way  of  offering  a  premium  to  withhold  pay  in  such  cases.  Is  there 
any  reason  why  a  person  sustaining  injury  and  damage  to  his 
property  from  the  negligent  act  of  another  should  not  receive  just 
what  he  has  lost  as  nearly  as  this  may  be  accomplished  in  a  court 
of  justice?  If  a  person's  property  is  destroyed  or  damaged,  why 
is  he  not  entitled  to  be  compensated  to  the  full  extent  of  its  value 
in  money  so  that  he  may  replace  the  same  with  other  property  of 
a  like  nature?  If  on  the  day  of  its  injury  or  destruction  he  restores 
or  replaces  it  with  his  own  money,  why  is  he  not  entitled  to  in- 
terest on  that  money  to  the  date  of  repayment?  If  he  had  loaned 
the  money  to  some  one,  he  certainly  would  be  entitled  to  interest, 
and,  if  he  borrowed  it  from  some  one,  he  would  likely  have  to  pay 
interest  for  its  use.  By  being  awarded  legal  interest,  therefore, 
he  is  simply  placed  in  statu  quo,  and  nothing  short  of  this  is  full 
compensation,  and  that  is  just  what  the  law  aims  to  accomplish. 

Is  it  an  answer  to  say  that  the  damages  are  unliquidated,  and 
therefore  interest  is  not  to  be  allowed?  This,  to  our  minds,  is  no 
reason  at  all  in  case  of  injury  to  or  destruction  of  property.  In 
all  such  cases  the  party  sustaining  the  loss  is  limited  in  his  recovery 
to  the  market  or  actual  value  of  the  property  at  the  time  of-  the 
injury  or  destruction.  Moreover,  he  must  establish  the  amount  of 
the  loss  by  some  fixed  rule  or  standard,  and  the  evidence  must  be 
confined  thereto,  and  either  the  court  or  jury  must  find  the  value 
in  accordance  with  the  evidence.  In  the  class  of  cases,  therefore, 
where  the  damage  is  complete,  and  the  amount  of  the  loss  is 
fixed  as  of  a  particular  time,  there  is — there  can  be — no  reason 
why  interest  should  be  withheld  merely  because  the  damages  are 
unliquidated.  There  are  certain  cases  of  unliquidated  damages 
where  interest  cannot  be  allowed.  In  all  personal  injury  cases, 
cases  of  death  by  wrongful  act,  libel,  slander,  false  imprisonment, 
malicious  prosecution,  assault  and  battery,  and  all  cases  where  the 
damages  are  incomplete  and  are  peculiarly  within  the  province  of 
the  jury  to  assess  at  the  time  of  the  trial,  no  interest  is  permissible. 
But  this  is  so  because  the  damages  are  continuing  and  may  even 
reach  beyond  the  time  of  trial. 

There  are  also  other  cases  where  interest  is  not  allowed,  such 
as  where  exemplary  damages  are  permitted,  where  the  statute 
fixes  a  penalty  or  determines  the  damages  to  be  allowed.  Of  the 
latter  class  of  cases,  Oregon  S.  L.  R.  Co.  v.  Jones,  29  Utah,  147, 
80  Pac.  732,  is,  in  part,  an  illustration.  Some  courts  also  seem  to 
make   a    distinction   between   gross   or   willful   negligence  and  or- 


PECUNIARY    LOSSES — UNLIQUIDATED   DEMANDS  '     1G3 

dinary  negligence.  In  the  former,  interest  is  given ;  in  the  latter 
it  is  withheld.  This  is  arbitrary  at  best.  The  loss  to  the  injured 
person  is  precisely  the  same  in  either  case,  and  he  should  receive 
compensation— no  more,  no  less.  There  is  another  class  of  cases 
where  the  matter  is  relegated  to  the  jury  or  the  court  trying  the 
case  to  allow  interest  or  not,  as  in  their  judgment  may  seem  proper, 
as  a  part  of  the  damages  to  be  allowed.  This  rule  does  not  seem 
to  be  based  upon  any  sound  reason.  Moreover,  it  must  lead  to 
uncertainty,  and  may  tend  to  favoritism  in  its  application.  In  one 
case  the  jury  may  allow  20  per  cent.,  in  another  only  2,  and  in 
another  none  at  all,  although  the  cases  may  be  essentially  the  same. 
If  the  law  is  to  be  treated  as  a  science,  it  should  be  as  nearly  exact 
as  it  can  be  made,  and  its  operation  should  be  uniform.  In  those  cases 
the  courts  hold  that,  if  the  amount  allowed  by  the  jury  in  the  form 
of  interest  makes  the  damages  excessive,  then  the  courts  will  re- 
quire a  remittitur  of  the  excess  or  grant  a  new  trial. 

The  whole  matter,  then,  resolves  itself  into  a  question  of  exces- 
sive damages.  If  the  amount  allowed  by  the  jury^  is  excessive— 
that  is,  not  supported  by  the  evidence  when  considered  as  a  whole 
— in  cases  where  the  amount  of  damage  is  to  be  ascertained  as  of 
a  particular  time  and  in  accordance  with  fixed  rules  of  evidence 
and  known  standards  of  value,  or  if  the  damages  allowed  are  ex- 
cessive, appearing  to  have  been  given  under  the  influence  of  pas- 
sion or  prejudice,  the  trial  courts  should,  when  a  motion  for  a  new 
trial  is  made  upon  that  ground,  require  a  remittitur  of  the  excess, 
or  grant  a  new  trial.  The  power  and  discretion  to  do  this  is  ex- 
pressly vested  in  the  trial  courts  of  this  state,  and  should  be  exer- 
cised whenever  it  is  manifest  that  justice  and  right  require  it,  and, 
unless  this  appears,  the  courts  should  not  interfere  with  the  ver- 
dict of  the  jury.  When  excessive  damages  are  allowed,  the  case 
should  be  treated  and  corrected  as  such,  and  not  by  this  court 
or  any  court  assuming  the  power  to  arbitrarily  withhold  interest  in 
all  cases  of  unliquidated  damages.  General  justice  is  never  pro- 
moted by  an  effort  to  reach  it  by  ignoring  sound  principles  of  law 
in  particular  cases.  Whenever  possible,  it  ought  not  be  left  to 
the  mere  caprice  of  either  court  or  jury  to  either  grant  or  with- 
hold that  which  is  due.  A  fixed  rule,  when  based  on  sound  prin- 
ciples, is,  in  most  instances,  a  safer  guide  than  the  judgment  of 
a  few  individuals,  however  honest  or  pure  their  motives.     *     *     * 

The  true  test  to  be  applied  as  to  whether  interest  should  be 
allowed  before  judgment  in  a  given  case  or  not  is,  therefore,  not 
whether  the  damages  are  unli(juidatcd  or  otherwise,  but  whether 
the  injury  and  consequent  damages  are  complete  and  must  be  as- 
certained as  of  a  particular  time  and  in  accordance  with  fixed  rules 
of  evidence  and  known  standards  of  value,  which  the  court  or  jury 
must  follow  in  fixing  the  amount,  rather  than  be  guided  by  their 
best  judgment  in  assessing  the  amount  to  be  allowed  for  past  as 


164  INTEREST 

well  as  for  future  injury,  or  for  elements  that  cannot  be  measured 
by  any  fixed  standards  of  value.  The  same  rule  under  the  same 
conditions  would  of  necessity  apply  to  actions  for  breach  oi  con- 
tract.    *     *     * 

As  the  case  at  bar  falls  clearly  within  the  rule  where  the  amount 
is  computed  as  of  a  fixed  time,  and  in  accordance  with  fixed  rules 
of  evidence  as  to  value,  the  court  did  not  err  in  computing,  on  the 
amount  of  damages  found,  interest  at  the  legal  rate.  The  judg- 
ment therefore  is  affirmed,  with  costs," 

«  See,  also,  Jacksonville,  T.  &  K.  W.  Ry.  Co.,  v.  Peninsular  Land  Transp. 
&  Mfg.  Co.,  post,  p.  167. 


VALUE 


1G5 


VALUE 
I.  How  Estimated* 


CALUMET  RIVER  RY.  CO.  v.  ^lOORE. 

(Supreme  Court  of  Illinois,  18S8.  124  111.  329,  15  N.  E.  764.) 
Shope  J'  The  three  cases  of  Calumet  River  Railway  Co.  v. 
Clara  J^Ioore  et  al. ;  Same  v.  John  Leffler  et  al. ;  and  Same  v  Jen- 
nette  Freeman  et  al.,  involving  the  condemnation  of  the  right  ot 
way  of  appellant  company's  railway  across  adjoining  tracts  of  land, 
and  presenting  substantially  the  same  questions,  will  be  considered 
too-ether.  An  objection  common  to  each  case  is  that  the  damages 
awarded  were  excessive,  and  the  judgments  severally  rendered 
should  be  reversed.     *     *     *  •     ,    •  c    «i 

"It  was  conceded,"  counsel  for  appellant  says  in  his  bnet,     by 
all  the  witnesses,  that  this  river  property  had  a  value  as  possible 
dock  propertv,"  and  the  evidence  clearly  tended  to  show  that  fact. 
But  it  is  said  that  the  evidence  does  not  show  that  there  is  now 
any  demand  for  docks  at  this  point  on  the  river,  and  that  the  con- 
sideration of  such  possible  demand  introduced  speculative  elements, 
and  that  the  estimates  in  respect  thereof  were  speculative  and  re- 
mote, and  therefore  improper.    In  proceedings  for  condemnation  of 
private  property  for  public  use,  as  is  here  sought  to  be  done,  the 
damages  to  be  awarded  as  compensation  to  the  land-owner  must 
be  ba'^sed  upon  the  fair  cash  value  of  the  land  at  the  time  of  the 
condemnation  thereof.     The  questions  ordinarily  to  be  determined 
by  the  jury  are,  (1)  what  is  the  present  market  value  of  the  land 
taken?  and  (2)  to  what  extent,  if  at  all,  will  the  remainder  of  the 
tract  of  land  not  taken  be  depreciated  in  its  market  value  by  rea- 
son of  the  taking  and  appropriation  of  the  land  taken  to  the  pro- 
posed use?     The  compensation  is  to  be  estimated  with  reference 
to  the  uses  for  which  the  property  is  suitable  in  its  then  condition, 
having  regard  to   its  location,  situation,   and  quality,  and  to  the 
business  wants  in  that  locality,  or  such  as  might  reasonably  be 
expected  in  the  near  future.     If  these  lots  were  available  for  dock 
purposes,  for  which,  as  shown,  there  was  no  immediate  demand, 
their  value  when   improved   by  the  building  of  docks,  the  profits 
that  might  be  derived  therefrom,  or  the  value  of  the  lots  at  some 
future  time,   as  when   business   or  the   wants  of  the   community 

1  For  disrnss'ion  of  prinfii)l('s,  see  Hale  ou  Damages  (2d  Ed.)  §  TG. 

2  Part  of  the  opiniuii   is  umiUed. 


166  VALUE 

might  make  profitable  the  making  of  docks  or  slips  on  this  prop- 
erty, would  be  merely  conjectural  and  remote,  forming  no  proper 
element  in  estimating  the  damages  to  be  paid.  But  if  the  fact 
that  these  lots  were  located  with  a  frontage  on  this  river  at  a  place 
where  they  could  at  some  future  time,  when  demanded,  be  made 
available  as  dock  property,  enhanced  their  present  market  value  in 
their  then  condition  and  state  of  improvement,  or  want  of  improve- 
ment, that  fact  would  be  competent  and  proper  to  be  shown,  and 
be  considered  by  the  jury  in  estimating  the  damages.  It  can  make 
no  difference  that  there  might  be  no  present  demand  for  docks 
upon  these  lands.  If,  in  consequence  of  their  supposed  adaptation 
to  such  use,  they  had  an  increased  market  value  above  what  they 
otherwise  would  have,  such  value  forms  the  proper  basis  of  re- 
covery. 

We  said  in  Railroad  Co.  v.  Jacobs,  110  111.  414,  that  in  these 
cases  "the  real  issue  was  what  was  the  market  value  of  the  prop- 
erty for  any  purpose  for  which  it  is  adapted  or  might  be  used." 
And  so,  in  Dupuis  v.  Railway  Co.,  115  111.  97,  3  N.  E.  720,  we  held 
that  if  lands  were  valuable  by  reason  of  their  location  on  or  near 
a  river,  for  the  purposes  of  operating  a  saw-mill  or  factory,  or 
any  other  purpose,  testimony  to  prove  the  same  was  proper  for 
the  consideration  of  the  jury,  in  determining  the  fair  market  value 
of  the  premises.  Railway  Co.  v.  Walsh,  106  111.  253 ;  Washburn 
V.  Railroad  Co.,  59  Wis.  364,  18  N.  W.  328.  The  evidence  in  this 
case  shows  that  these  lots,  3  and  4,  had  a  market  value  based  upon 
their  availability  to  be  put  to  the  purpose  indicated,  and,  so  far 
as  the  evidence  tended  to  show  the  present  market  value  of  the 
lots,  we  are  of  opinion  it  was  competent,  and  that  damages  based 
thereon  are  neither  remote  nor  speculative.  It  is  evident  that  the 
jury  estimated  the  damages  from  the  present  cash  market  value 
of  the  land  as  they  found  it  to  be  from  the  evidence,  as  they  were 
instructed  by  the  court  to  do.  The  jury  were  expressly  told  that, 
in  determining  the  value  of  the  lots  for  dock  purposes,  the  value 
should  be  estimated  at  its  present  cash  market  value.  The  Jury 
had  before  them  evidence  tending  to  show  the  capabilities  and 
adaptability  of  these  parcels  of  land  to  dock  purposes  by  reason 
of  their  location  and  their  abutting  on  this  river,  and  that  the 
market  value  thereof,  as  then  situated,  was  enhanced  by  this  fact. 
It  clearly  appears  that  their  availability  for  dock  purposes  is  wholly 
destroyed  by  the  taking  and  appropriation  of  the  right  of  way 
across  the  lots  by  petitioner's  road.  The  injury  is  permanent;  and, 
viewing  the  case  and  all  its  facts,  we  cannot  say  that  the  damages 
awarded  were  grossly  excessive  or  unreasonable. 

It  is  argued  that  the  jury  must  have  considered  improper  ele- 
ments in  the  cases  of  Leffler  and  Freeman,  from  the  fact  that  there 
is  great  disparity  between  the  damages  awarded  them  and  the 
damages  awarded  appellees  Moore  and  others;   but  it  will  be  only 


MARKET   VALUE  ^"' 

necessary  to  say  that  lot  2,  owned  by  the  latter,  is  not  shown  to  be 
adapted 'to  dock   purposes,   to   account   for  the  difference  m^the 
damages  awarded,  if  there  were  no  other  reason  therefor. 
Judgment  affirmed. 


II.  Market  Value ' 


JACKSONVILLE,  T.  &  K.  W.  RY.  CO.  v.  PENINSULAR 
•^  LAND,  TRANSP.  &  MFG.  CO. 

(Supreme  Court  ot  Florida,  1891.  27  Fla.  1,  9  South.  601,  17  L.  R.  A.  83,  Co.) 
Action  for  damages  for  the  destruction  of  property  ill  Tayares, 
Fla  o  wit,  a  hotel,  two  stores,  a  livery  stable,  several  cottages 
and'  some  personal  property,  by  a  fire  caused  by  the  escape  o 
sparks  from  defendant's  locomotive.  There  was  judgment  for  the 
plaintiff  for  .$52,909,  and  the  defendant  railway  company  appeals. 

pVm,.v   r    T  •     *     *     *     The  law  as  to  what  is  the  "measure  of 
damage"' in' the  abstract,  in  cases  where  the  property  of  one  has 
b  r'destroyed,  unintentionally,  but  by  the  "^S'-S^^jXe^s  o" 
lessness  of  another,  where  there  is  no  element  of  wil  fulness  or 
malSrusncss  in  the  destruction,  is  well  settled  to  be  '  ,ust  com 
pensation  in  money  for  the  property  destroyed;'  /"*  an  amount 
as  will  fully  restore  the  loser  to  the  same  property  status  that  he 
occupied  before  the  destruction.    To  arrive  at  the  amount  of  such 
^mT^nsation,  inquiry,  in  the  absence  of  malice,  -  -«--;^J^~- 
fined  strictly  to  the  ascertainment  of  the  value  of  the  properties 
destroyed!  with  such  incidents  of  interest  lor  the  retention  of  such 
value  from  the  person  entitled  thereto  as  may  be  sanctioned  by 
™w     The  contention  of  the  appellant     •     *     »     is  that  the  pla.  - 
tiff,  in  establishing  the  value  of  his  destroyed  properties,  shou  d 
haCe  been  confined  to  proof  of  its  market  value  at  the  time  am 
nface  of  Hs  destruction;    and  that  the  admission  of  evidence  as  to 
tl  e  oriAnal  cost  ot  the  properties,  and  as  to  the  depreciation  there- 
o    from  its  original  cost  by  usage  or  otherwise,  was  erroneous 
and  that    t  wa?  error  to  instruct  the  jury  that  the  plaintih  was 
ntitled  as  matter  of  law,  to  interest,  at  the  rate  fixed  by  aw  tjpon 
whatsoever  amount  of  damages  they  might  find  the  plamtift  to 


be  entitled  to. 


Wherever  there  is  a  well-known  or  fixed  market  price  for  any 
property,  the  value  of  which  is  in  controversy,  it  is  proper,  in  es- 
fabhshing  the  value,  to  prove  such  market  value;   but,  in  order  to 

a  For  ,r.sn,sslon  of  princil-lcs.  soo  Ifnlo  m,  I):,n,i.>,'os  (2.1  Kd.)  §§  77.  78 
*  l-urt  of  Lbe  oi>iniou  is  uuullcd  and  the  slalou.cnt  of  faets  is  rewnltea. 


1G8  VALUE 

say  of  a  thing  that  it  has  a  market  value,  it  is  necessary  that  there 
shall  be  a  market  for  such  commodity;  that  is,  a  demand  therefor 
— an  ability,  from  such  demand,  to  sell  the  same  when  a  sale  there- 
of is  desired.  Where,  therefore,  there  is  no  demand  for  a  thing — 
no  ability  to  sell  the  same — then  it  cannot  be  said  to  have  a  mar- 
ket value  "at  a  time  when,  and  at  a  place  where,"  there  is  no  mar- 
ket for  the  same.  We  think  it  would  have  been  a  very  harsh  rule 
in  a  case  like  this  to  have  confined  the  plaintiff  to  proof  of  the 
market  value  of  the  property  at  the  time  and  place  of  its  destruc- 
tion, in  the  absence  of  proof  that  at  the  time  and  place  of  such 
destruction  there  was  a  market  for  such  property.  In  cases  where 
property  is  of  a  well-known  kind  in  general  use,  having  a  recog- 
nized standard  value,  it  is  not  proper  to  circumscribe  the  proof 
of  such  value  within  the  limits  of  the  market  demand  at  the  time 
when,  and  at  the  place  where,  it  was  destroyed. 

Were  the  rule  contended  for  to  prevail,  then  the  compensation 
for  personal  properties,  confessedly  worth  thousands  of  dollars, 
would  be  reduced  to  a  pittance  in  cents  if  destroyed  en  route  from 
market  to  market,  in  a  thinly-settled,  barren  country  where  there 
was  no  demand,  simply  because  of  the  accident  of  "time  and  place" 
of  its  destruction.  In  actions  of  this  kind,  where  the  value  of  the 
properties  destroyed  is  the  criterion  of  the  amount  of  damage  to 
be  awarded,  and  the  property  destroyed  has  no  market  value  at 
the  place  of  its  destruction,  then  all  such  pertinent  facts  and  cir- 
cumstances are  admissible  in  evidence  that  tend  to  establish  its 
real  and  ordinary  value  at  the  time  of  its  destruction;  such  facts 
as  will  furnish  the  jury,  who  alone  determine  the  amount,  with 
such  pertinent  data  as  will  enable  them  reasonably  and  intelligently 
to  arrive  at  a  fair  valuation ;  and  to  this  end  the  original  market 
cost  of  the  property ;  the  manner  in  which  is  has  been  used ;  its 
general  condition  and  quality;  the  percentage  of  its  depreciation 
since  its  purchase  or  erection,  from  use,  damage,  age,  decay,  or 
otherwise — are  all  elements  of  proof  proper  to  be  submitted  to  the 
jury  to  aid  them  in  ascertaining  its  value.  And  to  establish  value 
in  such  cases  the  opinions  of  witnesses  acquainted  with  the  stand- 
ard value  of  such   properties  are  properly  admissible.     *     *     * 

The  amount  which  it  would  have  cost  to  erect  buildings  of  the 
same  kind  on  the  day  of  the  fire,  less  a  proper  deduction  for  de- 
terioration, is  not  the  proper  measure  of  damages  in  a  case  of  this 
kind.     *     =:=     * 

The  value  of  the  property  at  the  time  and  place  of  the  fire  is 
the  question  the  jury  is  to  pass  upon.  This  the  court  charged,  and 
the  plaintiff  admitted.  Market  value  is  what  a  thing  will  sell  for. 
Railroad,  etc.,  Co.  v.  Bunnell,  81  Pa.  414.  To  make  a  market,  how- 
ever, there  must  be  buying  and  selling.  Blydenburgh  v.  Welsh,  1 
Baldw.  340.  Property  may  have  a  value  for  which  the  owner  may 
recover  if  it  be  destroyed,  although  it  have  no  market  value.    Rail- 


MARKET   VALUE  1G9 

road  Co.  v.  Stanford,  12  Kan.  354,  380,  15  Am.  Rep.  362.  "Sup- 
pose," asks  the  court  in  the  case  just  cited,  "a  rod  of  railway  track, 
or  a  shade  tree,  or  a  fresco  painting  on  the  walls  or  ceiling  of  a 
house,  or  a  bushel  of  corn  on  the  western  plains,  should  be  de- 
stroyed, could  there  be  no  recovery  for  these  articles  simply  be- 
cause there  might  be  no  actual  market  value  for  the  same?"  To 
fix  the  market  value  of  a  thing,  it  seems  to  us  that  there  must 
be  a  selling  of  things  of  the  same  kind.  If  there  had  ever  been 
a  sale  of  an  hotel,  or  of  any  other  building,  in  Tavares,  we  are  not 
informed;  and  we  have  no  judicial  knowledge,  nor  does  the  rec- 
ord inform  us,  that  hotels  have  a  market  value  there.  Yet,  though 
there  is  no  market  value  or  standard  value,  the  plaintiff  should 
not  be  allowed  more  than  the  property  destroyed  by  fire  on  the 
9th  of  April,  1888,  was  reasonably  worth  in  Tavares.  To  do  this 
it  is  proper  to  invoke  the  aid  of  all  facts  calculated  to  show  its 
value,  and  we  are  unable  to  perceive  that  the  circuit  judge  erred 
in  admitting  the  evidence  of  the  cost  of  replacing  the  building  on 
the  day  of  the  fire.  It  was  a  fact  tending  to  show,  and  to  be  con- 
sidered with  others,  by  the  jury  in  determining  what  amount  of 
money  would  put  the  plaintiff  in  the  position  in  which  he  was 
at  the  time.  *  *  *  If  an  article  has  no  market  value,  its  value 
may  be  shown  by  proof  of  such  elements  or  facts  aft'ecting  the 
question  as  exist.  Recourse  may  be  had  to  the  items  of  cost,  and 
its  utility  and  use.    2  Suth.  Dam.  378. 

In  Luse  v.  Jones,  39  N.  J.  Law,  707,  the  plaintiff  was  permitted 
to  show  the  cost  of  a  bedstead  as  tending  to  prove  its  value.  This 
cost  was  the  price  at  which  a  regular  dealer  in  such  articles  had 
sold  it  when  new  in  the  ordinary  course  of  trade.  "A  sale  so 
made,''  said  the  court,  "was  evidence  of  the  market  value  of  the 
thing  when  new,  and  the  value  of  such  goods  when  worn  can 
scarcely  be  ascertained  except  by  reference  to  the  former  price, 
and  the  extent  of  the  depreciation.  Of  course,  the  cost  alone  would 
not  be  a  just  criterion  of  the  present  value,  but  it  would  constitute 
one  element  in  such  a  criterion,  and  the  attention  of  the  jury  in  this 
case  was  clearly  directed  to  the  importance  which  it  deserved  to 
have."  See,  also,  Sullivan  v.  Lear,  23  Fla.  463,  474,  2  South.  846, 
11  Am.  St.  Rep.  388.  In  Whipple  v.  Walpole,  10  N.  H.  130,  it  was 
held  it  was  admissible  to  prove  what  horses  like  those  lost  or  in- 
jured cost  at  a  town  near  the  place  where  the  loss  occurred.  Upon 
the  same  principle,  and  for  even  stronger  reasons,  we  think  that 
the  cost  of  restitution  at  the  time  of  the  destruction  of  the  building 
was  an  element  which  might  be  considered  by  the  jury  with  others 
in  ascertaining  value.     *     *     * 

The  question  of  value  in  cases  where,  as  here,  there  is  no  mar- 
ket value,  is  one  peculiarly  for  the  jury.     *     *     * 

Upon  the  question  of  the  allowance  of  interest  as  matter  of  right 
upon  the  amount  of  damages  found  by  the  jury,  from  the  date  of 


170  VALUE 

the  destruction  of  the  property  in  cases  like  this,  where  the  dam- 
ages sued  for  are  unliquidated,  the  following  authorities,  with 
others  that  we  have  examined,  hold,  in  effect,  "that  the  juny  may, 
at  their  discretion,  allow  and  include  interest  in  their  verdict  as 
damages,  but  not  as  interest  eo  nomine :"  2  Sedg.  Dam.  p.  190 ; 
authorities  cited  in  note  to  Selleck  v.  French,  6  Am.  Dec.  196; 
Bljick  V.  Transportation  Co.  45  Barb.  (N.  Y.)  40 ;  Railroad  Co.  v. 
Sears,  66  Ga.  499;  Lincoln  v.  Claflin,  7  Wall.  132,  19  L.  Ed.  106; 
Garrett  v.  Railway  Co.,  36  Iowa,  121 ;  Brady  v.  Wilcoxson,  44  Cal. 
239.  In  all  these  authorities  no  other  reason  is  given  for  this  rule 
than  that  it  has  been  so  held  in  other  cases  that  have  gone  be- 
fore them,  except  that  in  a  few  cases  it  is  put  upon  the  ground 
that  where  property  is  wrongfully  taken  and  withheld,  the  defend- 
ant gets  the  benefit  of  its  use  during  the  detention,  and  is  required 
to  pay  interest  as  compensation  for  such  use,  when  in  cases  of 
property  wrongfully  destroyed  the  defendant  derives  no  benefit 
therefrom.  The  answer  to  this  theory  is  that,  in  cases  of  this 
kind  for  the  negligent  and  wrongful  destruction  of  property,  the 
issue  as  to  the  amount  of  the  compensation  does  not  depend  upon 
benefits  that  accrued  therefrom  to  the  defendant,  whose  negligent 
act  brought  about  the  destruction ;  but  the  issue  rests  wholly  upon 
the  question  as  to  what  is  the  sum  of  the  damage  to  the  party 
whose  property  has  been  destroyed.  Neither  do  we  think  this 
theory  can  properly  be  applied  even  in  cases  of  trespass  and  trover. 
Interest  on  the  value  of  the  property  taken  in  those  cases  cannot 
correctly  be  said  to  be  allowed  to  the  plaintiff  "because  the  defend- 
ant derives  benefit  from  the  use  of  the  property,"  but  is  allowed 
to  the  plaintiff  to  compensate  him  for  his  deprivation  of  its  use 
during  the  detention  thereof.     *     *     * 

At  what  time  does  the  liability  for  the  negligent  destruction  of 
property  attach  to  the  wrong-doer  if  it  shall  be  found  that  all 
things  concur  to  set  such  liability  in  motion?  It  has  been  some- 
times contended  that  such  liability  attaches  only  upon  the  finding 
of  the  jury.  We  do  not  think  so.  The  verdict  of  the  jury  simply 
declares  the  liability  and  fixes  the  amount.  The  law  attaches  the 
liability  at  the  time  of  the  destruction,  if  all  the  circumstances 
attendant  thereon  concur  in  stamping  the  case  with  the  legal  ele- 
ments of  liability.  As  before  seen,  the  measure  of  the  loser's  dam- 
age is  the  value  of  his  property  destroyed  at  the  time  of  its  de- 
struction. Why  at  the  time  of  destruction?  Because  it  is  at  that 
time  that  the  destroyer  becomes  liable  for  such  value.  The  loser, 
before  and  at  the  time  of  such  destruction,  was  entitled  to  his 
property,  and  the  beneficial  use  of  it;  and  instantly,  upon  such 
destruction,  becomes,  under  the  law,  entitled  to  its  value  in  money 
at  the  hands  of  the  wrong-doer,  and  can  sue  instantly  for  such 
value.  Because,  through  the  law's  delays,  no  opportunity  is  af- 
forded to  have  the  amount  of  that  value  declared  by  a  jury  for 


VALUE    PECULIAR   TO    OWNER  I'l 

a  year,  perhaps  several  years,  is  it  right  that  the  loser  shall,  during 
all  that  time,  be  kept  out  of  both  his  property,  its  use,  and  its  value, 
without  some  remuneration  for  the  retention  by  the  wrong-doer 
of  such  value?  Upon  every  principle  of  right  we  cannot  thmk  so. 
The  theory  of  the  measure  of  liability  in  such  cases  is  just  com- 
pensation.' We  cannot  see  either  justice  or  completeness  of  the 
compensation  dispensed  under  a  rule  that  declares  a  party  who 
wrongfully  destroys  another's  property  to  be  liable  at  the  time 
of  such  destruction  for  the  value  thereof,  but  that  permits  the 
wrong-doer  to  withhold  such  value  for  years,  without  some  com- 
pensation for  such  retention.     *     *     *     The  judgment  is  affirmed. 


III.  Value  Peculiar  to  Owner  * 


BARKER  V.  S.  A.  LEWIS  STORAGE  &  TRANSFER  CO. 

(Supreme  Court  of  Errors  of  Connecticut,  1905.     78  Conn.  198,  61  Atl.  363.) 
Action  for  conversion   of  household  furniture  and  personal  ef- 
fects by  David  O.  Barker  and  wife  against  the  S.  A.  Lewis  Storage 
&  Transfer  Company.     From  a  judgment  for  plaintiffs,  defendant 

appeals. 

Prentice,  T-^  The  plaintiffs  delivered  to  the  defendant,  as  a 
warehouseman,  for  storage,  certain  household  furniture  and  per- 
sonal effects.  This  action  was  brought  to  recover  damages  for 
their  conversion.  *  *  *  The  property  in  question  included,  as 
was  claimed,  certain  family  records,  pictures,  photographs,  heir- 
looms, and  other  articles  of  peculiar  value  to  the  plaintiffs.  With 
respect  to  these  articles  the  court  gave  instructions  in  the  language 
of  Green  v.  Boston  &  L.  R.  Co.,  128  Mass.  222,  35  Am.  Rep.  370, 
of  which  no  complaint  is  made.  The  remaining  property  was 
household  furniture  and  effects,  including  books,  all  claimed  to 
have  been  purchased  by  or  presented  to  the  plaintiffs  when  new 
for  use  by  them  in  housekeeping,  and  in  fact  so  used  by  them  in 
their  home  in  New  Haven  until  the  time  that  they  were  stored 
with  the  defendant  upon  the  occasion  of  their  having  temporarily 
broken  up  housekeeping  to  go  into  the  country.  The  defendant 
claimed  that  the  measure  of  the  plaintiffs'  recovery  for  these  arti- 
cles was  their  fair  market  value  at  the  time  and  place  of  conver- 
sion, with  lawful  interest  since  that  date.  It  asked  the  court  to 
so  charge,   and   sought  by  the   introduction  of   evidence   to  show 

B  For  (liscussiun  of  piiiiciplos.  see  Hale  on  Damages  (2d  Ed.)  §  70. 
«  Part  of  the  opinion  is  oniitled. 


172  VALUE 

that  there  was  a  secondhand  market  for  such  things  hi  New  Haven, 
and  presumably,  although  no  definite  offer  was  made,  to  follow 
up  that  line  of  inquiry  by  offering  evidence  of  some  sort  claimed 
to  show  the  value  of  articles  of  the  kind  in  question  in  such  mar- 
ket. The  court  was  correct  in  refusing  to  instruct  the  jury  as  re- 
quested, and  in  excluding  said  testimony. 

The  cardinal  rule  is  that  a  person  injured  shall  receive  fair  com- 
pensation for  his  loss  or  injury,  and  no  more.  BaldAvin  v.  Porter, 
12  Conn.  473.  Commonly  in  cases  of  conversion  the  loss  is  the 
value  of  the  property.  Baldwin  v.  Porter,  supra.  Commonly  the 
value  of  the  property,  as  representing  the  owner's  loss,  is  its  mar- 
ket value,  if  it  have  one,  since  thereby  is  indicated  the  cost  of  re- 
placing. Hence  the  subordinate  rule  of  general  application  ap- 
pealed to  by  the  defendant.  But  the  principal  rule,  which  seeks 
to  give  fair  compensation  for  the  loss,  is  the  paramount  one  ;  and 
ordinarily,  when  the  subordinate  one  fails  to  accomplish  the  de- 
sired result,  it  yields  to  ah  exception  or  modification.  Sutherland 
on  Damages,  §  12.  It  is  now  generally  recognized  that  wearing 
apparel  in  use,  and  household  goods  and  effects  owned  and  kept 
for  personal  use,  are  articles  which  cannot  in  any  fair  sense  be 
said  to  be  marketable  and  have  a  market  value,  or  at  least  a  mar- 
ket value  which  is  fairly  indicative  of  their  real  value  to  their 
owner,  and  of  his  loss  by  being  deprived  of  them.  So  it  has  been 
frequently,  and  we  think  correctly,  held  that  the  amount  of  his 
recovery  in  the  event  of  conversion  ought  not  to  be  restricted  to 
the  price  which  could  be  realized  by  a  sale  in  the  market,  but  he 
should  be  allowed  to  recover  the  value  to  him  based  on  his  actual 
money  loss,  all  the  circumstances  and  conditions  considered,  re- 
sulting from  his  being  deprived  of  the  property;  not  including, 
however,  any  sentimental  or  fanciful  value  he  may  for  any  reason 
place  upon  it.  Denver,  etc.,  R.  Co.  v.  Frame,  6  Colo.  385;  Mc- 
Mahon  v.  City  of  Dubuque,  107  Iowa,  62,  77  N.  W.  517,  70  Am. 
St.  Rep.  143 ;  Int.  Ry.  Co.  v.  Nicholson,  61  Tex.  553 ;  Fairfax  v. 
New  York  C.  &  H.  R.  Co.,  7Z  N.  Y.  167,  29  Am.  Rep.  119;  Sell 
v.  Ward,  81  111.  App.  675;  Joyce  on  Damages,  §  1037;  Sutherland 
on   Damages,  §   1117;    Sedgwick  on  Damages,  §  251. 

The  court  in  one  portion  of  its  charge  stated  this  rule  to  the 
jury  in  substance,  in  so  far,  at  least,  as  was  required  by  any  claim 
on  the  part  of  the  plaintiffs.  In  another  place,  however,  it  was 
less  careful  in  its  language,  and,  while  doubtless  intending  to  ex- 
press the  same  principle  elsewhere  stated,  it  used  the  following 
language:  "The  measure  of  damages  in  this  case,  gentlemen,  re- 
lates to  the  actual  value  of  the  property  at  the  time  of  its  con- 
version ;  and  that  is  to  be  determined  from  the  cost  of  the  prop- 
erty, the  extent  to  which  it  has  been  used,  and  its  condition  at  the 
time  of  the  conversion."  This  was  an  altogether  misleading  state- 
ment.    It  selected  three  of  the   many  factors  which   might  enter 


VALUE    PECULIAR   TO    OWNER  173 

into  the  consideration  of  the  question  of  fair  compensation,  made 
them  the  sole  and  decisive  ones,  and  ignored  all  others.  Under 
such  instructions  a  jury  might  well  go  far  astray,  and  we  are  un- 
able to  say,  from  a  study  of  the  charge  as  a  whole,  that  the  error 
here  committed  was  elsewhere  corrected  so  that  the  jury  ap- 
proached the  inquiry  as  to  the  amount  of  damages  to  be  awarded 
with  a  correct  understanding  of  the  law.  *  *  *  There  is  error, 
and  a  new  trial  is  granted.    All  concur. 


LOUISVILLE  &  N.  R.  CO.  v.  STEWART. 

(Supreme  Ccrurt  of  Mississippi,   1901.     78  Miss.  600,  29  South.  391.) 

Action  by  Mrs.  T.  C.  Stewart  against  the  Louisville  &  Nashville 
Railroad  Company  to  recover  for  damages  to  certain  household 
furniture  and  some  oil  portraits  of  the  parents  of  Mrs.  Stewart's 
husband.  From  a  verdict  and  judgment  for  the  plaintiff  in  the 
court  below  for  $600,  and  the  overruling  of  defendant's  motion  for 
a  new  trial,  it  appeals. 

Whitfield,  C.  J.  The  court  excluded  the  hearsay  testimony  of 
ISIrs.  Stewart  as  to  the  value  of  the  oil  portraits,  and  there  was 
no  evidence  before  the  jury  as  to  cost.  Nor  was  there  any  as  to 
what  it  would  cost  to  replace  or  restore  them,  nor  any  of  any  kind, 
except  that  she  was  allowed  to  answer  as  to  what  they  were  worth 
to  her,  from  the  associations  connected  with  them — they  being  fam- 
ily portraits ;  their  purely  sentimental  value,  in  other  words.  This 
is  not  competent.  The  true  rule  in  such  cases  is,  not  to  inquire 
as  to  market  value,  since  such  articles  have  no  market  value,  but 
to  show  the  "actual  value  to  him  who  owns  the  portraits,  taking 
into  account  the  cost,  the  practicability  and  expense  of  replacing 
it,  and  such  other  considerations  as  in  the  particular  case  affect 
its  value  to  the  owner."  Green  v.  Railroad  Co.,  128  Mass.  221, 
35  Am.  Rep.  370;  Railway  Co.  v.  Nicholson,  61  Tex.  550;  Hutch. 
Carr.  §  770  (b). 

It  was  error  not  to  have  sustained  the  objection  made  to  this 
testimony.  But  the  evidence  would  abundantly  sustain  a  verdict 
for  $538  damages  to  the  other  articles;  and,  if  appellant  will  remit 
down  to  that  sum,  the  judgment  will  be  affirmed,  since,  on  the 
facts  of  this  record,  there  is  no  merit  in  any  other  contention.  So 
ordered. 


174  VALUE 


IV.  Highest  Intermediate  Value  ^ 


WRIGHT  V.  BANK  OF  THE  METROPOLIS. 

(Court  of  Appeals  of  New  York,  1SS8.     110  N.  Y.  237,  18  N.  E.  79,  1  L.  R.  A. 
2S9,  6  Am.  St.  Rep.  356.) 

Stock  which  had  been  deposited  with  the  Bank  of  the  Metropolis 
as  collateral  was  wrongfully  sold  by  defendant  on  January  28,  1878, 
for  $2,261.50.  The  sale  was  not  known  to  the  owner,  B.  H.  Wright, 
until  May  9th.  This  action  for  the  conversion  of  the  stock  was 
begun  October  7,  1879.  On  February  14,  1881,  the  stock  reached 
its  highest  price  between  the  date  of  conversion  and  the  day  of 
trial,  selling  for  $19,003.  The  jury  returned  a  verdict  for  plain- 
tiflf  for  $3,391.25.  There  was  no  evidence  showing  when  the  stock 
reached  that  value.  The  verdict  was  set  aside  on  plaintiff's  mo- 
tion. The  order  was  reversed  by  the  General  Term  and  judg- 
ment ordered  on  the  verdict.  From  the  judgment  entered  in  com- 
pliance with  the  order  of  the  General  Term,  both  parties  appeal. 

Pjjckham,  j.8  *  *  *  By  the  charge  the  case  was  left  to  the  jury 
to  give  the  highest  price  the  stock  could  have  been  sold  for,  inter- 
mediate its  conversion  and  the  day  of  trial,  provided  the  jury 
thought,  under  all  the  circumstances,  that  the  action  had  been 
commenced  within  a  reasonable  time  after  the  conversion,  and  had 
been  prosecuted  with  reasonable  diligence  since.  Authority  for 
this  rule  is  claimed  under  Romaine  v.  Van  Allen,  26  N.  Y.  309, 
and  several  other  cases  of  a  somewhat  similar  nature,  referred  to 
therein.  Markham  v.  Jaudon,  41  N.  Y.  235,  followed  the  rule  laid 
down  in  Romaine  v.  Van  Allen.  In  these  two  cases  a  recovery 
was  permitted  which  gave  the  plaintiff  the  highest  price  of  the 
stock  between  the  conversion  and  the  trial.  In  the  Markham 
Case  the  plaintiff  had  not  paid  for  the  stocks,  but  was  having  them 
carried  for  him  by  his  broker  (the  defendant)  on  a  margin.  Yet 
this  fact  was  not  regarded  as  making  any  difference  in  the  rule  of 
damages,  and  the  case  was  thought  to  be  controlled  by  that  of 
Romaine.  In  this  state  of  the  rule  the  case  of  Matthews  v.  Coe. 
49  N.  Y.  57-62,  came  before  the  court.  The  precise  question  was 
not  therein  involved;  but  the  court,  per  Church,  C.  J.,  took  oc- 
casion to  intimate  that  it  was  not  entirely  satisfied  with  the  cor- 
rectness of  the  rule  in  any  case  not  special  and  exceptional  in  its 
circumstances;  and  the  learned  judge  added  that  they  did  not 
regard  the  rule  as  so  firmly  settled  by  authority  as  to  be  beyond 

7  For  discussion  of  principles,  see  Hale  on  Damages  (26.  Ed.)  §§  83,  84. 

8  Part  of  tlie  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


HIGHEST   INTERMEDIATE    VALUE  175 

the  reach  of  review  whenever  an  occasion  should  render  it  nec- 
essary. 

One  phase  of  the  question  again  came  before  this  court,  and  in 
proper  form,  in  Baker  v.  Drake,  53  N.  Y.  211,  13  Am.  Rep.  507, 
where  the  plaintiff  had  paid  but  a  small  percentage  on  the  value 
of  the  stock,  and  his  broker,  the  defendant,  was  carrying  the  same 
on  a  margin,  and  the  plaintiff  had  recovered  in  the  court  below, 
as  damages  for  the  unauthorized  sale  of  the  stock,  tlie  highest 
price  between  the  time  of  conversion  and  the  time  of  trial.  The 
rule  was  applied  to  substantially  the  same  facts  as  in  Markham  v. 
Jaudon,  supra,  and  that  case  was  cited  as  authority  for  the  de- 
cision of  the  court  below.  This  court,  however,  reversed  the  judg- 
ment, and  disapproved  the  rule  of  damages  which  had  been  applied. 
The  opinion  was  written  by  that  very  able  and  learned  judge, 
Rapallo,  and  all  the  cases  pertaining  to  the  subject  were  reviewed 
by  him,  and  in  such  a  masterly  manner  as  to  leave  nothing  further 
for  us  to  do  in  that  direction.  We  think  the  reasoning  of  the  opin- 
ion calls  for  a  reversal  of  this  judgment.     *     *     * 

In  stating  what  in  his  view  would  be  a  proper  indemnity  to  the 
injured  party  in  such  a  case,  the  learned  judge  commenced  his 
statement  with  the  fact  that  the  plaintiff  did  not  hold  the  stocks 
for  investment ;  and  he  added  that,  if  "they  had  been  paid  for  and 
owned  by  the  plaintiff,  different  considerations  would  arise,  but 
it  must  be  borne  in  mind  that  we  are  treating  of  a  speculation  car- 
ried on  with  the  capital  of  the  broker,  and  not  of  the  customer. 
If  the  broker  has  violated  his  contract  or  disposed  of  the  stock 
without  authority,  the  customer  is  entitled  to  recover  such  dam- 
ages as  would  naturally  be  sustained  in  restoring  himself  to  the 
position  of  which  he  has  been  deprived.  He  certainly  has  no  right 
to  be  placed  in  a  better  position  than  he  would  be  in  if  the  wrong 
had  not  been  done.  The  whole  reasoning  of  the  opinion  is  still 
based  upon  the  question  as  to  what  damages  would  naturally  be 
sustained  by  the  plaintiff  in  restoring  himself  to  the  position  he 
had  been  in;  or,  in  other  words,  in  repurchasing  the  stock.  It  is 
assumed  in  the  opinion  that  the  sale  by  the  defendant  was  illegal 
and  a  conversion,  and  that  plaintiff  had  a  right  to  disaffirm  the 
sale,  and  to  require  defendants  to  replace  the  stock.  If  they  failed, 
then  the  learned  judge  says  the  plaintiff's  remedy  was  to  do  it  him- 
self, and  to  charge  the  defendants  with  the  loss  necessarily  sus- 
tained by  him  in  doing  so. 

Is  not  this  equally  the  duty  of  a  plaintiff  who  owns  the  whole 
of  the  stock  that  has  been  wrongfully  sold?  I  mean,  of  course, 
to  exclude  all  question  of  punitive  damages  resting  on  bad  faith. 
In  the  one  case  the  plaintiff  has  a  valid  contract  with  the  broker 
to  hold  the  stock,  and  the  broker  violates  it  and  sells  the  stock. 
The  duty  of  the  broker  is  to  replace  it  at  once,  upon  the  demand 
of  the  plaintiff.     In  case  he  docs  not,  it  is  the  duty  of  the  plaintiff 


176  VALUE 

to  repurchase  it.  Why  should  not  the  same  duty  rest  upon  a  plain- 
tiff who  has  paid  in  full  for  his  stock,  and  has  deposited  it  with 
another  conditionally?  The  broker  who  purchased  it  on  a  margin 
for  the  plaintiff  violates  his  contract  and  his  duty  when  he  wrong- 
fully sells  the  stock,  just  as  much  as  if  the  whole  purchase  price 
had  been  paid  by  the  plaintiff.  His  duty  is  in  each  case  to  replace 
the  stock  upon  demand,  and,  in  case  he  fail  so  to  do,  then  the  duty 
of  the  plaintiff  springs  up,  and  he  should  repurchase  the  stock 
himself.  This  duty  it  seems  to  me  is  founded  upon  the  general 
duty  which  one  owes  to  another  who  converts  his  property  under 
an  honest  mistake,  to  render  the  resulting  damage  as  light  as  it 
may  be  reasonably  within  his  power  to  do.     *     *     * 

The  rule  of  damages  as  laid  down  in  Baker  v.  Drake,  in  cases 
where  the  stock  was  purchased  by  the  broker  on  a  margin  for 
plaintiff,  and  where  the  matter  was  evidently  a  speculation,  has 
been  affirmed  in  the  later  cases  in  this  court.  See  Gruman  v. 
Smith,  81  N.  Y.  25;  Colt  v.  Owens,  90  N.  Y.  368.  In  both  cases 
the  duty  of  the  plaintiff  to  repurchase  the  stock  within  a  reasonable 
time  is  stated.  I  think  the  duty  exists  in  the  same  degree  where 
the  plaintiff  had  paid  in  full  for  the  stock,  and  was  the  absolute 
owner  thereof.  In  Baker  v.  Drake  the  learned  judge  did  not  as- 
sume to  declare  that  in  a  case  where  the  pledgor  was  the  abso- 
lute owner  of  the  stock,  and  it  was  wrongfully  sold,  the  measure 
of  damages  must  be  as  laid  down  in  the  Romaine  Case.  He  was 
endeavoring  to  distinguish  the  cases,  and  to  show  that  there  was 
a  difference  between  the  case  of  one  who  is  engaged  in  a  specula- 
tion with  what  is  substantially  the  money  of  another  and  the  case 
of  an  absolute  owner  of  stock  which  is  sold  wrongfully  by  the 
pledgee.  And  he  said  that  at  least  the  former  ought  not  to  be 
allowed  such  a  rule  of  damages.  It  can  be  seen,  however,  that 
the  judge  was  not  satisfied  with  the  rule  in  the  Romaine  Case, 
even  as  applied  to  the  facts  therein  stated.  In  his  opinion  he 
makes  use  of  this  language :  *Tn  a  case  where  the  loss  of  prob- 
able profits  is  claimed  as  an  element  of  damage,  if  it  be  even  al- 
lowable to  mulct  a  defendant  for  such  a  conjectural  loss,  its  amount 
is  a  question  of  fact,  and  a  finding  in  regard  to  it  should  be  based 
upon  some  evidence."  In  order  to  refuse  to  the  plaintiff  in  that 
case,  however,  the  damages  claimed,  it  was  necessary  to  overrule 
the  Markham  Case,  which  was  done. 

Now,  so  far  as  the  duty  to  repurchase  the  stock  is  concerned,  I 
se3  no  difference  in  the  two  cases.  There  is  no  material  distinc- 
tion in  the  fact  of  such  ownership  which  should  place  the  plain- 
tiff outside  of  any  liability  to  repurchase  after  notice  of  sale,  and 
should  render  the  defendant  continuously  liable  for  any  higher 
price  to  which  the  stock  might  mount  after  conversion  and  before 
trial.  As  the  same  liability  on  the  part  of  defendant  exists  in  each 
case  to  replace  the  stock,  and  as  he  is  technically  a  wrong-doer  in 


HIGHEST   INTERMEDIATE    VALUE  177 

both  cases,  but  in  one  no  more  than  in  the  other,  he  should  respond 
in  the  same  measure  of  damages  in  both  cases;  and  that  measure 
is  the  amount  which,  in  the  language  of  Rapallo,  J.,  is  the  nat- 
ural, reasonable,  and  proximate  result  of  the  wrongful  act  com- 
plained of,  and  which  a  proper  degree  of  prudence  on  the  part  of 
the  plaintiff  would  not  have  averted.  The  loss  of  a  sale  of  the 
stock  at  the  highest  price  down  to  trial  would  seem  to  be  a  less 
natural  and  proximate  result  of  the  wrongful  act  of  the  defendant 
in  selling  it  when  plaintiff  had  the  stock  for  an  investment,  than 
when  he  had  it  for  a  speculation ;  for  the  intent  to  keep  it  as  an 
investment  is  at  war  with  any  intent  to  sell  it  at  any  price,  even 
the  highest.  But  in  both  cases  the  qualification  attaches  that  the 
loss  shall  only  be  such  as  a  proper  degree  of  prudence  on  the  part 
of  the  complainant  would  not  have  averted,  and  a  proper  degree 
of  prudence  on  the  part  of  the  complainant  consists  in  repurchas- 
ing the  stock  after  notice  of  its  sale,  and  within  a  reasonable  time. 
If  the  stock  then  sells  for  less  than  the  defendant  sold  it  for,  of 
course  the  complainant  has  not  been  injured,  for  the  difference 
in  the  two  prices  inures  to  his  benefit.  If  it  sells  for  more,  that 
difference  the  defendant  should  pay. 

It  is  said  that  as  he  had  already  paid  for  the  stock  once,  it  is 
unreasonable  to  ask  the  owner  to  go  in  the  market  and  repurchase 
it.  I  do  not  see  the  force  of  this  distinction.  In  the  case  of  the 
stock  held  on  margin,  the  plaintiff  has  paid  his  margin  once  to 
the  broker,  and  so  it  may  be  said  that  it  is  unreasonable  to  ask 
him  to  pay  it  over  again  in  the  purchase  of  the  stock.  Neither 
statement,  it  seems  to  me,  furnishes  any  reason  for  holding  a  de- 
fendant liable  to  the  rule  of  damages  stated  in  this  record.  The 
defendant's  liability  rests  upon  the  ground  that  he  has  converted, 
though  in  good  faith,  and  under  a  mistake  as  to  his  rights,  the 
property  of  the  plaintiff.  The  defendant  is,  therefore,  liable  to 
respond  in  damages  for  the  value.  But  the  duty  of  the  plaintiff  to 
make  the  damage  as  light  as  he  reasonably  may  rests  upon  him  in 
both  cases;  for  there  is  no  more  legal  wrong  done  by  the  defend- 
ant in  selling  the  stock  which  the  plaintiff  has  fully  paid  for  than 
there  is  in  selling  the  stock  which  he  has  agreed  to  hold  on  a  mar- 
gin, and  which  agreement  he  violates  by  selling  it.  All  that  can 
be  said  is  that  there  is  a  difference  in  amount,  as  in  one  case  the 
plaintiff's  margin  has  gone,  while  in  the  other  the  whole  price  of 
the  stock  has  been  sacrificed.  But  there  is  no  such  diff'crence  in 
the  legal  nature  of  the  two  transactions  as  should  leave  the  duty 
resting  upon  the  plaintiff  in  the  one  case  to  repurchase  the  stock, 
and  in  the  other  case  should  wholly  absolve  him  therefrom. 

A  rule  which  recjuires  a  repurchase  of  the  stock  in  a  reasonable 
time  does  away  with  all  questions  as  to  the  higlicst  j^ricc  before 
the  commencement  of  the  suit,  or  whether  it  was  commenced  in  a 
COOLEY  DA.\r. — 12 


1 78  VALUE 

reasonable  time,  or  prosecuted  with  reasonable  diligence ;  and 
leaves  out  of  view  any  question  as  to  the  presumption  that  plain- 
tiff would  have  kept  his  stock  down  to  the  time  when  it  sold  at 
the  highest  mark  before  the  day  of  trial,  and  would  then  have  sold 
it,  even  though  he  had  owned  it  for  an  investment.  Such  a  pre- 
sumption is  not  only  of  quite  a  shadowy  and  vague  nature,  but  is 
also,  as  it  would  seem,  entirely  inconsistent  with  the  fact  that  he 
was  holding  the  stock  as  an  investment.  If  kept  for  an  invest- 
ment, it  would  have  been  kept  down  to  the  day  of  trial ;  and  the 
price  at  that  time  there  might  be  some  degree  of  propriety  in 
awarding,  under  certain  circumstances,  if  it  were  higher  than  when 
it  was  converted.  But  to  presume  in  favor  of  an  investor  that  he 
would  have  held  his  stock  during  all  of  a  period  of  possible  de- 
pression, and  would  have  realized  upon  it  when  it  reached  the 
highest  figure,  is  to  indulge  in  a  presumption  which,  it  is  safe  to 
say,  would  not  be  based  on  fact  once  in  a  hundred  times.  To 
formulate  a  legal  liability  based  upon  such  presumption  I  think 
is  wholly  unjust  in  such  a  case  as  the  present.  Justice  and  fair 
dealing  are  both  more  apt  to  be  promoted  by  adhering  to  the  rule 
which  imposes  the  duty  upon  the  plaintiff  to  make  his  loss  as  light 
as  possible,  notAvithstanding  the  unauthorized  act  of  the  defendant, 
assuming,  of  course,  in  all  cases,  that  there  was  good  faith  on  the 
part  of  the  appellant.  It  is  the  natural  and  proximate  loss  which 
the  plaintiff  is  to  be  indemnified  for,  and  that  cannot  be  said  to 
extend  to  the  highest  price  before  trial,  but  only  to  the  highest 
price  reached  within  a  reasonable  time  after  the  plaintiff  has 
learned  of  the  conversion  of  his  stock  within  which  he  could  go  in 
the  market  and  repurchase  it.  What  is  a  reasonable  time  when 
the  facts  are  undisputed,  and  different  inferences  cannot  reasonably 
be  drawn  from  the  same  facts,  is  a  question  of  law.  See  Colt  v. 
Owens,  90  N.  Y.  368 ;    Hedges  v.  Railroad  Co.,  49  N.  Y.  22o. 

We  think  that  beyond  all  controversy  in  this  case,  and  taking  all 
the  facts  into  consideration,  this  reasonable  time  had  expired  by 
July  1,  1878,  following  the  9th  of  May  of  the  same  year.  The 
highest  price  which  the  stock  reached  during  that  period  was  $2,- 
795,  and,  as  it  is  not  certain  on  what  day  the  plaintiff  might  have 
purchased,  we  think  it  fair  to  give  him  the  highest  price  it  reached 
in  that  time.  *  *  *  The  judgment  must  be  reversed  and  a  new 
trial  granted." 

9  See,  also,  First  Nat.  Bank  v.  Red  River  Nat.  Bank,  9  N.  D.  319,  8.3  N. 
W.  221  (1900). 

The  history  of  the  rule  laid  down  iu  the  principal  case  may  be  traced 
by  reading  Suydam  v.  Jenkins.  3  Sandf.  614  (18.".0);  Roniaine  v.  Van  Allen, 
26  N.  Y.  309  (1863);  Burt  v.  Dntcher,  34  N.  Y.  493  (1S66);  Markham  v.  Jau- 
don,  41  N.  Y.  236  (1869);  Mathews  v.  Coe,  49  N.  Y.  57  (1872);  Lobdell  v. 
Stowell,  51  N.  Y.  70  (1872);  Grunian  v.  Smith,  81  N.  Y.  25  (1880);  Colt  v. 
Owens,  90  N.  Y.  368  (1SS2). 


HIGHEST   INTERMEDIATE    VALUE  179 


INGRAM  V.  RANKIN  et  al. 

(Supreme  Court  of  Wisconsin,  1S79.     47  Wis.  40C,  2  N.  W.  755,  32 
Am.  Rep.  762.) 

Taylor,  J.^°  This  is  an  action  to  recover  for  the  value  of  a 
quantity  of  hay,  wheat  and  oats,  which  the  plaintiff  claims  to  own, 
and  which  he  alleges*  was  wrongfully  and  unlawfully  taken  from 
his  possession  by  the  defendants  and  converted  to  their  use.  The 
plaintiff  recovered,  and  from  the  judgment  entered  in  his  favor  the 
defendants   appealed   to  this  court.     *     *     * 

The  plaintiff  had  a  lease  of  the  land,  upon  which  the  hay  and 
grain  were  raised,  from  one  Hammond.  The  defendants  were 
judgment  creditors  of  Hammond,  and  took  such  hay  and  grain 
upon  and  by  virtue  of  an  execution  issued  upon  a  judgment  against 
him.     *     *     * 

We  think  the  uniform  course  of  decision  is  that  the  measure  of 
damages  is  the  value  of  the  property  at  the  time  fixed  for  the  de- 
livery, or  at  the  time  of  the  conversion,  with  interest  to  the  day 
of  trial:  the  only  exception  to  the  rule  being  that  in  case  of  re- 
plevin, where  the  property  is  in  esse,  and  supposed  to  be  in  the 
hands  of  the  defendant  at  the  time  of  the  trial,  and  plaintiff  re- 
covers, he  may  recover  as  his  damages  the  value  of  the  property 
on  the  day  of  trial,  excluding  any  value  added  to  the  same  by  labor 
or  money  of  the  defendant  or  those  under  whom  he  claims.    *    *    * 

It  is  said  that  the  rule  giving  as  damages  the  highest  market 
value,  intermediate  the  conversion  or  day  of  delivery  and  the  day 
of  trial,  should  be  applied  to  articles  of  trade  and  commerce  which 
fluctuate  in  value  from  day  to  day,  and  that  to  adhere  to  rule  of 
value  at  the  time  of  the  conversion  would  in  many  cases  allow  the 
wrongdoer  to  make  profit  out  of  his  own  wrong,  or  at  all  events 
it  might  prevent  the  plaintiff  from  taking  advantage  of  a  rising 
market,  and  thereby  might  deprive  him  of  his  reasonable  expecta- 
tions of  profit  from  his  investments. 

There  can  be  no  force  in  the  argument  that  the  defendant  would 
be  allowed  to  make  money  out  of  his  own  tortious  act.  If  the 
wrongdoer  sells  the  property  which  he  has  unlawfully  taken  from 
another,  the  owner  of  the  property  can  waive  the  tort  and  sue 
the  tort-feasor  for  the  money  he  has  received  upon  such  sale  of 
his  property,  and  thereby  prevent  him  from  making  a  profit  out 
of  his  wrong.  But  the  rule  which  allows  the  plaintiff  to  recover 
the  highest  market  value  is  objectionable,  because  it  allows  him 
to  recover  speculative  damages,  especially  when  a  long  time  elapses 
between  the  conversion  and  the  day  of  trial.  In  most  cases  prop- 
erty which  rapidly  changes  in  value  is  not  retained  in  the  posses- 
sion or  ownership  of  one  person  for  a  great  length  of  time,  and  it 

10  Part  of  the  oiiiiiiou  is  oniilted. 


180  VALUE 

would  be  a  matter  of  the  utmost  doubt  whether  the  plaintiff,  had 
he  not  been  deprived  of  the  possession  of  his  property,  would  have 
realized  the  highest  market  value  to  which  it  might  have  attained 
during  the  time  of  the  conversion  and  the  time  of  trial ;  and  in 
those  cases  where  the  market  value  is  very  fluctuating  great  in- 
justice would  be  done  by  this  rule  to  the  man  who  honestly  con- 
verted such  property,  in  the  belief  that  it  was  his  own,  if,  after  the 
lapse  of  five  or  six  years,  he  should  be  called  upon  to  pay  the  high- 
est market,  value  it  had  attained  during  the  time.  The  hardship 
-of  enforcing  this  rule  in  the  case  of  stocks,  which  is  perhaps  prop- 
erty of  the  most  unfixed  value,  forced  the  Court  of  Appeals  in  New 
York  to  repudiate  the  rule,  after  it  had  been  partially  adopted  by 
the  courts  of  that  state.     *     *     * 

The  difficulties  and  injustice  of  the  rule  of  the  highest  market 
price  has  led  to  various  modifications  of  it  by  the  courts  which 
have  adopted  it,  some  courts  having  so  modified  it  as  to  confine 
it  to  the  highest  price  between  the  date  of  conversion  and  the  com- 
mencement of  the  action,  others  to  the  time  of  the  commencement 
of  the  action,  provided  the  action  be  commenced  within  a  reason- 
able time,  and  others  between  the  time  of  conversion  and  the  time 
of  trial,  provided  the  action  be  commenced  within  a  reasonable 
time.     *     *     * 

Mr.  Field,  in  his  work  upon  the  Law  of  Damages,  after  an  ex- 
amination of  all  the  cases,  says :  "The  rule  of  valuation  of  the  prop- 
erty at  the  time  of  the  conversion,  with  interest,  prevails  in  Massa- 
chusetts, where  there  is  no  claim  for  special  damages,  and  this 
general  rule  has  been  recognized  in  Pennsylvania,  Kentucky,  Mis- 
souri, West  Virginia,  New  Hampshire,  Connecticut,  Maine,  Ver- 
mont, Illinois,  Wisconsin,  Louisiana,  Mississippi,  Nevada,  Florida, 
Delaware,  Maryland,  Minnesota,  New  York,  Texas  and  Iowa." 
*     *     *  , 

The  rule  fixing  the  measure  of  damages  in  actions  for  breaches 
of  contract  for  the  delivery  of  chattels  and  in  all  actions  for  the 
wrongful  and  unlawful  taking  of  chattels,  whether  the  taking  was 
such  as  would  formerly  have  been  denominated  trespass  de  bonis, 
or  trover,  at  the  value  of  the  chattels  at  the  time  when  delivery 
ought  to  have  been  made,  or  at  the  taking  or  conversion,  with  in- 
terest, is  certainly  founded  upon  principle.  It  harmonizes  with 
the  rule  which  restricts  the  plaintiff  to  compensation  for  his  loss, 
and  is  as  just  and  equitable  as  any  other  general  rule  which  the 
courts  have  been  able  to  prescribe,  and  has  greatly  the  advantage 
of  certainty  over  all  others. 

We  have  concluded,  therefore,  to  adhere  to  the  general  rule  laid 
down  by  this  court  in  the  cases  cited,  and  hold  that  in  all  actions 
either  upon  contract  for  the  non-delivery  of  goods,  or  for  the  tor- 
tious taking  or  conversion  of  the  same,  "unless  the  plaintiff  is  de- 
prived  of   some    special    use   of  the   property   anticipated  by  the 


HIGHEST    INTERMEDIATE    VALUE  ISl 

wrongdoer,"  and  in  the  absence  of  proof  of  circumstances  which 
would  entitle  the  plaintiff  to  recover  exemplary  or  punitory  dam- 
ages, the  measure  of  damages  is — first,  the  value  of  the  chattels  at 
the  time  and  place  when  and  where  the  same  should  have  been  de- 
livered, or  of  the  wrongful  taking  or  conversion,  with  interest  on 
that  sum  to  the  date  of  trial;  second,  if  it  appears  that  the  defend- 
ant, in  case  of  a  wrongful  taking  or  conversion,  has  sold  the  chat- 
tels, the  plaintiff  may,  at  his  election,  recover  as  his  damages  the 
amount  for  which  the  same  were  sold,  with  interest  from  the  time 
of  the  sale  to  the  day  of  trial ;  third,  if  it  appears  that  the  chattels 
wrongfully  taken  or  converted  are  still  in  the  possession  of  the 
defendant  at  the  time  of  the  trial,  the  plaintiff  may,  at  his  election, 
recover  the  present  value  of  the  same  at  the  place  where  the  same 
were  taken  or  converted,  in  the  form  they  were  in  when  so  taken  or 
converted. 

These  rules  will  prevent  the  defendant  from  making  profit  out 
of  his  own  wrong,  will  give  the  plaintiff  the  benefit  of  any  advance 
in  the  price  of  the  chattels  when  defendant  holds  possession  of 
the  same  at  the  time  of  the  trial,  and  on  the  whole  be  much  more 
equitable  than  the  rule  given  by  the  court  below.     *     *     * 


182  EXEMPLARY  DAMAGES 

EXEMPLARY  DAMAGES 

I.  When  Recoverable  * 

1.  In  General, 


DURFEE  V.  NEWKIRK. 
(Supreme  Court  of  Michigan,  1S90.     83  Mich.  522,  47  N.  W.  351.) 

Morse,  J.^  Plaintiffs  brought  action  in  trespass  on  the  case  in 
the  Wayne  circuit  court,  alleging  that  the  defendants  had  sold  to 
them  100  pounds  of  peppermint  oil,  representing  to  them  falsely 
that  the  same  was  good  and  genuine  peppermint  oil,  when  in  fact 
it  was  dementholized  oil,  from  which  the  active  principle  of  good 
and  genuine  peppermint  oil,  to-wit,  menthol,  had  been  eliminated 
to  tbe  knowledge  of  defendants.  The  jury  returned  a  verdict 
for  the  plaintiffs  in  the  sum  of  $350,  for  which  they  had  judg- 
ment.    *     *     * 

The  defendants  claim  error  on  the  trial  in  the  following  partic- 
ulars:  *  *  *  Fifth.  Plaintiffs  were  not  entitled  to  exemplary 
damages.     *     *     * 

•  The  court,  in  his  instructions  as  to  damages,  among  other  things 
said:  "If  you  believe  from  the  evidence  that  Newkirk  perpetrated 
the  fraud  charged,  and  that  he  did  it  willfully,  for  the  purpose  of 
injuring  the  plaintiffs  as  rivals  or  competitive  buyers,  you  may 
add  to  the  actual  damages  as  above  indicated  some  reasonable  sum 
as  exemplary  or  punitory  damages  proportionate  to  the  malicious- 
ness of  the  act."  It  has  been  said  by  this  court  that,  where  the 
damages  are  capable  of  pecuniary  estimation,  vindictive  damages 
can  never  be  allowed;  that  for  any  wrongful  injuries  where  the 
grievance  created  is  purely  pecuniary  in  its  nature,  and  is  sus- 
ceptible of  a  full  and  definite  money  compensation,  it  is  not  per- 
missible to  abandon  a  certain  rule  which  will  do  complete  justice, 
for  an  uncertain  one  that  can  hardly  fail  to  do  injustice.  Warren 
V.  Cole,  15  Mich.  273.  And  in  Wilson  v.  Bowen,  64  Mich.  133,  31 
N.  W.  81,  it  is  said  that  it  is  not  the  province  of  the  jury  after  full 
damages  have  been  found  for  the  plaintiff',  so  that  he  is  fully  com- 
pensated for  the  wrong  committed  by  the  defendant,  to  mulct  the 
defendant  in  an  additional  sum  to  be  handed  over  to  the  plaintiff 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  89,  90. 

2  Part  of  the  opinion  is  omitted. 


WHEN    RECOVERABLE 


183 


as  a  punishment  for  the  wrong  he  has  done  to  such  plaintiff.     See, 
also.  Stilson  v.  Gibbs,  53  Mich.  280,  18  N.  W.  815. 

There  is  a  class  of  cases,  such  as  seduction  (see  Watson  v.  Wat- 
son, 53  Mich.  168,  18  N.  W.  605,  51  Am.  Rep.  Ill),  when  the  dam- 
ages are  not  capable  of  accurate  measurement  by  a  money  stand- 
ard, and  where  they  must  necessarily  be  left  to  the  proper  discre- 
tion of  the  jury.  In  such  cases  ''increased  damages"  are  permit- 
ted for  circumstances  of  aggravation  in  the  wrong-doing,  but  they 
are  not  given  by  the  law,  as  interpreted  by  this  court,  in  punish- 
ment of  the  wrong-doer,  but  as  extra  compensation  to  the  person 
wronged,  for  the  reason  that  the  injury  is  considered  greater  because 
of  such  circumstances  of  aggravation,  and  therefore  the  compensa- 
tion ought  to  be  greater.  Willful  trespasses,  assaults  and  bat- 
'terics,  libels  and  slanders,  false  imprisonment,  and  perhaps  other 
actions,  where  the  injury  is  in  part  to  the  feelings  of  the  plaintiff, 
to  his  shame  and  humiliation,  are  cases  where  "increased"  dam- 
ages may  be  given.  Post  Co.  v.  McArthur,  16  Mich.  447;  Welch 
V.  Ware.  32  Mich.  77;  Elliott  v.  Van  Buren,  33  Mich.  56,  20  Am. 
Rep.  668;  Livingston  v.  Burroughs,  33  Mich.  511 ;  Scripps  v.  Reil- 
ly,  38  Mich.  10-25;  Ross  v.  Leggett,  61  Mich.  452,  453,  28  N.  W. 
695,  1  Am.  St.  Rep.  608. 

But  this  is  not  a  case  where  such  damages  are  admissible.  Here 
the  wrong  was  capable  of  accurate  pecuniary  measurement,  and 
the  damage  to  plaintiffs  was  simply  a  financial  one.  The  motive 
of  the  defendants  did  not  affect  the  wrong,  and  their  fraud,  how- 
ever premeditated  and  willful,  added  nothing  to  any  damages  which 
the  plaintiffs  were  entitled  to  recover  as  compensation  for  the 
wrong  inflicted.  But  we  are  not  willing  to  reverse  the  judgment 
for  this  error  of  the  trial  court.  As  it  is  very  plain  to  us  from  the 
testimony  that  the  plaintiff's  received  no  greater  amount  than  was 
their  actual  loss  on  account  of  the  transaction,  the  judgment  will 
stand.  It  is  not  the  duty  of  an  appellate  court  to  reverse  a  judg- 
ment, unless  it  is  satisfied  that  an  error  has  been  committed,  and 
that  such  error  has  done  injustice,  or  may  have  been  prejudicial  to 
the  appellant.  In  this  case,  as  before  shown,  the  oil  purchased 
was  worthless.  If  it  had  been  as  represented,  it  would  have  been 
worth,  under  the  testimony,  about  $300.  Interest  on  this  amount 
for  three  years  and  two  months  added  would  amount  to  more  than 
the  verdict  of  the  jury.  It  therefore  appears  that  nothing  was 
added  in  the  way  of  exemplary  damages.  The  judgment  is  there- 
fore affirmed.     *     *     * 


184  EXEMPLARY   DAMAGES 

COLE  V.  GRAY. 

(Supreme  Court  of  Kansas,  1905.     70  Kan.  705,  79  Pac.  654.) 

Action  by  F.  N.  Cole  against  C.  C.  Gray.     There  was  judgment 
for  defendant,  and  plaintiff  brings  error. 

C.  A.  Smith,  J.^  This  action  was  brought  by  plaintiff  in  error 
against  defendant  in  error,  who  was  the  postmaster  at  Leroy, 
Coifey  county,  in  the  district  court  of  said  county,  to  recover  dam- 
ages for  the  failure  of  said  postmaster  and  his  assistants  to  de- 
liver to  plaintiff  a  postal  card,  addressed  to  plaintiff,  when  called 
for  by  plaintiff,  which  had  arrived  at  said  post  office  through  the 
mails,  and  was  therein  at  the  time  plaintiff  called  for  same.  No 
actual  damages  were  alleged.  The  only  damage  claimed  seems  to 
have  been  for  mental  pain  and  anguish  in  failing  to  receive  notice 
of  the  death  of  the  plaintiff's  father,  and  his  consequent  inability 
to  attend  the  funeral.  The  trial  was  had  to  a  jury.  The  plaintiff 
introduced  evidence  of  the  arrival  of  the  postal  card  at  the  post 
office  at  8  o'clock  a.  m.  of  the  16th  of  the  month,  and  that  he  called 
for  same  five  times  thereafter  before  it  was  delivered  to  him  on  the 
afternoon  of  the  19th ;  that  a  lady  (who  was  admitted  to  have  been 
assistant  postmaster)  and  a  son  of  defendant  were  in  charge  of 
the  post  office  at  these  times;  that  plaintiff  was  prevented  from 
attending  his  father's  funeral  by  the  failure  to  deliver  said  postal 
card  the  first  time  it  was  called  for,  on  the  l6th.  The  duties  or 
capacity  of  defendant's  son  in  the  post  office  were  not  shown,  and 
no  actual  damages,  or,  at  least,  the  amount  of  the  actual  damages, 
if  any,  was  not  shown.     *     *     * 

Assuming  that  the  assistant  postmaster  and  the  defendant's  son 
were  in  charge  of  the  post  office  for  the  purpose  of  delivering  mail, 
and  by  employment  of  the  defendant,  and  not  as  appointed  officials 
of  the  government,  the  evidence  tended  to  show  gross,  if  not  wan- 
ton, negligence;  and  if  any  amount  of  actual  damages  had  been 
alleged  and  proven,  as  the  evidence  indicates  there  might  have 
been,  such  damages  might  have  been  recovered,  and,  in  addition 
thereto,  exemplary  or  punitive  damages  also  might  have  been  re- 
covered. Exemplary  damages,  however,  cannot  be  recovered  in 
the  absence  of  actual  damages.  West  v.  Telegraph  Co.,  39  Kan. 
93-99,  17  Pac.  807,  7  Am.  St.  Rep.  530,  and  cases  there  cited. 

Damages  for  mental  suffering  and  anguish  can  only  be  recovered 
— and  this  seems  to  be  the  only  damages  alleged  or  proven  in  this 
case — where  the  same  are  consequent  to  physical  injuries.  Id. 
*     *     *     The  judgment  will  be  affirmed. 

8  Part  of  the  opiuion  is  omitted. 


WHEN    RIXOVERABLE  185 


ALABAMA  G.  S.  R.  CO.  v.  SELLERS. 

(Supreme  Court  of  Alabama,  1S91.     93  Ala.  9,  9  South.  375,  30  Am.  St. 

Kep.  17.) 

Action  by  Nancy  M.  Sellers  and  her  husband  against  the  Ala- 
bama Great  Southern  Railroad  Company  to  recover  damages  for 
personal  injuries  to  the  plaintiff  caused  by  the  wrongful  act  of 
defendant's  employes.  There  was  judgment  for  plaintiff,  and  de- 
fendant appeals. 

McClellan,  J.*  The  inquiry  of  chief  importance  in  this  case  is 
whether  there  was  any  testimony  adduced  which,  if  believed,  would 
have  authorized  the  imposition  of  exemplary  damages.  We  think 
there  was  such  testimony.  The  plaintiff  (appellee  here)  testified 
in  her  own  behalf  that  she  purchased  a  ticket  entitling  her  to  trans- 
portation on  a  freight  train  of  the  defendant  from  Jonesboro  to 
Wheeling,  stations  on  defendant's  road  about  two  miles  apart,  and 
took  passage  on  such  train  at  Jonesboro;  that  at  Wheeling  there 
was  a  house  used  as  a  station-house  by  all  passengers  to  and  from 
that  point  over  defendant's  line,  and  at  which  defendant's  trains 
carrying  passengers  were  wont  to  stop  for  the  purpose  of  receiv- 
ing and  discharging  passengers ;  that  on  the  occasion  in  question 
the  train  was  not  stopped  at  said  station,  but  proceeded  from  200 
to  400  yards  beyond  it ;  that  it  was  raining  at  the  time ;  that  plain- 
tiff' requested  the  conductor  to  move  the  train  back  to  the  house, 
but  he  pretended  not  to  hear,  and  told  plaintiff'  she  must  get  off ; 
that  the  rain  increased,  and  was  falling  heavily,  and  a  high  wind 
was  prevailing,  when  she  did  get  off;  that  she  had  a  young  baby 
in  her  arms,  and  was  otherwise  incumbered  with  a  valise;  that 
because  of  these  impediments  she  could  not  use  efficiently  an  um- 
brella which  she  had;  that  she  alighted  in  obedience  to  the  direc- 
tion of  the  conductor  in  this  driving  rain,  and  walked  back  to  the 
station-house,  getting  thoroughly  wet,  and  in  consequence  became 
quite  sick,  and  was  so  for  three  months. 

The  testimony  of  the  conductor  goes  to  show  that  the  house  in 
question  was  used  as  a  station-house  by  his  company ;  and,  even 
on  the  evidence  of  the  defendant,  there  can  be  no  doubt  that  it 
was  the  duty  of  the  defendant  to  stop  this  train  at  the  house  and 
allow  passengers  to  alight  there  notwithstanding  the  house  be- 
longed to  another  company.  Railroad  Co.  v.  Johnston,  79  Ala. 
436.  If  the  jury  believed  the  testimony  we  have  detailed,  they 
would  have  been  justified  in  the  conclusion  that  defendant's  con- 
ductor, within  the  range  of  his  employment,  willfully  refused  to 
move  the  train  back  to  the  station,  and  willfully  compelled  the 
plaintiff  to  alight  in  the  driving  rain,  several  hundred  yards  from 

*  Part  of  tlie  opinion  is  oiiiiUed  and  Ibe  slatenicut  of  facts  is  rewritten. 


186  EXEMPLARY  DAMAGES 

any  shelter,  so  incumbered  with  her  child  and  baggage  as  to  be 
unable  to  protect  herself,  and  necessitating  exposure  to  the  ele- 
ments while  walking  this  distance.  We  cannot  hesitate  to  affirm 
that  this  misconduct  on  the  part  of  defendant's  employe,  with 
knowledge  of  the  situation,  was  such  a  willful  wrong,  committed 
in  such  reckless  disregard  of  the  necessarily  injurious  consequences 
to  the  plaintifif,  as  authorized  the  jury  to  punish  the  defendant 
therefor  by  the  imposition  of  exemplary  damages.  Railroad  Co. 
V.  Hurst,  36  Miss.  660,  668,  669,  74  Am.  Dec.  785  ;  Wilkinson  v. 
Searcy,  76  Ala.  176;  Railroad  Co.  v.  Frazier,  93  Ala.  45,  9  South. 
303,  30  Am.  St.  Rep.  28.     *     *     * 

There  are  respectable  authorities  which  appear  to  hold  that  ex- 
emplary damages   cannot  be   awarded  when   the  actual   injury  is 
purely  nominal,  the  theory  being  that  as  exemplary  damages  are 
laid  in  conservation  of  the  interests  of  society,  which  for  this  pur- 
pose are  considered  "as  blended  with  the  interests  of  the  individ- 
ual," where  the  individual  is  injured  only  nominally  or  not  at  all 
in  fact,  though  his  rights  are  violated,  "the  interests  of  society  have 
virtually  nothing  to  blend  with ;"    and  hence,  "the  individual  hav- 
ing but   a  nominal   interest,  society  can   have  none,"   etc.     Stacy 
V.  Publishing  Co.,  68  Me.  287.     This  view  is  specious,  but,  we  ap- 
prehend, not  sound.     The  true  theory  of  exemplary  damages  is  that 
of  punishment,  involving  the  ideas  of  retribution  for  willful  mis- 
conduct, and  an  example  to  deter  from  its  repetition.     The  posi- 
tion of  the  supreme  court  of  Maine,  can  be  sustained  in  principle, 
it  seems  to  us,  only  by  assuming  that  which  is  manifestly  untrue, 
namely,  that  no  act  is  criminal   which  does  not  inflict  individual 
injury  capable  of  being  measured  and  compensated  for  in  money. 
Many  acts  denounced  as  crime  by  our  statutes,  or  by  the  com- 
mon  law,   involve   no   pecuniary   injury  to  the  individual  against 
whom   they   are   directed,   and   which,   while   the   party  aggrieved 
could    not    recover    damages    as    compensation    beyond    a    merely 
nominal  sum,  are  yet  punished   in   the  criminal  courts,  and  may 
also    be    punished    in    civil    actions    by   the    imposition    of   "smart 
money;"   and,  on  the  same  principle,  acts  readily  conceivable  which 
involve  malice,   willfulness,   or  wanton  and  reckless  disregard   of 
the  rights  of  others,  though  not  within  the  calendar  of  crime,  and 
inflicting  no  pecuniary  loss  or  detriment,  measurable  by  a  money 
standard,  on  the  individual,  yet  merit  such  punishment  as  the  civil 
courts  may  inflict  by  the  imposition  of  exemplary  damages.     And 
upon  these  considerations  the  law  is,  and  has  long  been,  settled  in 
this  state  that  the  infliction  of  actual  damage  is  not  an  essential 
predicate  to  the  imposition  of  exemplary  damages.     Parker  v.  Mise, 
27  Ala.  480,  62  Am.  Dec.  776;   Telegraph  Co.  v.  Henderson,  89  Ala. 
510,  7  South.  419,  18  Am.  St.  Rep.  148:   Railroad  Co.  v.  Heddleston. 
82  Ala.  218,  3  South.  53.     See,  also,  1  Suth.  Dam.  748. 


1S7 

WHEN    RECOVERABLE 


The  charges  requested  by  the  defendant  to  the  effect  that  actual 
daLge  mu^st  be 'shown  before  P-f-  damages  coud  be  r^^^^^^^^ 
ered  were  therefore  properly  refused.  *  *  *  The  judgment  is 
affirmed. 

PRINCE  V.  STATE  MUT.  LIFE  INS.  CO. 

(Supreme  Court  of  South  Carolina.  1907.     77  S.  C.  187,  57  S.  E.  7GG.) 

Action  by  Albert  I.  Prince  against  tl.e  f"^'' ^'"^^.^^^'^ 
ance  Company.  There  was  judgment  for  the  plamtilt  for  $dOO,  and 
defendant  appeals.  ^     ^     ^^^^  ^^^.^^.^  ^^^^^^^  ^^  ^^^^^^^  ^^^^^^^ 

for  the  alleged  failure  of  the  defendant  to  issue  to  him  a  10-year 
policy  of  n^urance  on  plaintiff's  life.     The  allegations  of  the  com- 
o°a  nt  Tre   in  substance,  as  follows:   That  on  the  5th  day  of  May 
^gofin  consideration  of  the  sum  of  $15.43,  the  defendant  agreed 
to  execute  and  deliver  to  the  plaintiff  its  policy  of  insurance  upon 
his  Hfe^n  the  sum  of  $1,000,  and  m  case  of  plamtiff's  death  to  be 
navable  to  his  wife.     That  said  policy  was  to  mature  in  10  years, 
and  a    the  end  of  that  time,  plaintiff,  if  living   would  receive  the 
urn  of  $1,000,  and  in  case  of  his  death  the  beneficiary  would  receve 
that  amount;    provided  the  premiums  were  paid  as  they  became 
due      Tl^at  plaintiff  paid  the  .first  premium  and  received  a  receip 
the;efor,  stood  his  physical  examination,  and,  under  the  agreement 
above  set  forth,  was  accepted  as  an  insurable  risk  by  defendai    . 
That,  although  he  has  performed  his  part  of  the  contract  in    u 
defendant  refused  to  issue  said  lO-year  policy,  but,  instead,  willful  > 
and  wantonly  attempted  to  compel  plaintiff  to  accept  another  poli- 
cy of  insurance  by  threatening  plaintiff  with  imprisonment.     Ihe 
answer  was  a  general  denial.     *     *     *  ,.       ^ 

The  first  alleged  error  is  the  refusal  of  the  court  to  d.rect  a  ver- 
dict for  defendant,  on  the  grounds:  (1)  That  there  was  no  evi- 
dence that  Mr.  McKee  was  the  agent  of  defendant  company;  {Z) 
that  there  was  absolutely  no  element  of  damages  shown  As  to 
the  first  ground,  we  think  the  refusal  of  the  presiding  judge  was 
oroper  It  is  well  settled  that  where  there  is  any  evidence  at  all 
it  must  go  to  the  jury.  *  *  *  While  it  is  true,  mere  declara- 
tions of  a  person  are  not  proof  of  his  agency,  yet  there  is  other  ev- 
idence to  warrant  the  question  being  submitted  to  the  jury. 

Nor  are  we  prepared  to  say  that  in  this  case  there  were  no 
actual  damages.  It  is  undisputed  that  plaintiff  gave  his  note  to 
the  company,  and  that  it  is  still  an  outstanding  liability,  liue, 
plaintiff  has  not  paid  anything  on  the  note,  but  the  defendant  re- 
fuses to  give  it  up.     In  the  application  set  out  in  the  case,  as  in 

•  Part  of  tbe  oyiuiou  is  ouiiUeil. 


188  EXEMPLARY  DAMAGES 

some  applications,  it  was  not  agreed  that  the  premium  should  be 
forfeited  and  go  to  pay  the  company  for  trouble  and  expense  in 
issuing  the  policy  if  the  applicant  refused  to  accept  the  same  when 
issued.  It  was  therefore  the  duty  of  the  defendant  to  surrender 
the  note  after  the  failure  to  complete  the  contract.  This  note  was 
received  as  cash,  and  while  outstanding  it,  as  it  were,  reduced  the 
plaintiff's  credit  to  that  extent.  We  think  the  circuit  judge  was 
correct  in  holding  this  to  be  some  element  of  damage  sufficient 
to  take  the  case  to  the  jury. 

Assuming,  but  not  holding,  that  McKee  was  the  agent  of  the 
company,  and  having  power  to  bind  it  by  contract,  we  proceed  to 
consider  whether  the  application  for  insurance  was  a  part  of  the 
contract  of  insurance  and  binding  on  ^the  plaintiff.  That  the  ap- 
plication is  a  part  of  the  contract  seems  to  be  well  settled  by  au- 
thority. Cooley,  in  his  Briefs  on  the  Law  of  Insurance  (volume  1, 
p.  676),  says:  "For  the  general  purposes  of  construction,  an  ap- 
plication will  be  considered  a  part  of  the  contract,  if  it  is  referred 
to  in  the  policy  in  such  a  way  as  to  indicate  a  clear  intent  to  make 
it  a  part  thereof."  He  quotes  many  cases  supporting  this  view. 
*  *  *  This  being  so,  was  the  application  "a.  part  of  the  insur- 
ance contract  with  defendant  company"  binding  on  the  plaintiff? 
He  testified  to  certain  oral  declarations  made  to  him  by  McKee 
and  to  the  oral  agreement  made  between  them.  Granting  all  this 
to  be  true,  it  does  not  follow  that  the  defendant  is  liable  for  such 
agreement.  The  proposition  of  law  is  elementary  that,  where  a 
previous  oral  agreement  is  reduced  to  writing,  the  oral  agreement 
is  entirely  merged  into  the  written  agreement.  Mr.  Page,  in  his 
recent  work  on  Contracts  (section  1189),  thus  states  the  rule,  which 
is  supported  by  abundant  authority:  "If  the  parties  to  a  contract 
have  reduced  it  to  writing,  they  must  intend  such  writing  to  be 
the  repository  of  their  common  intention.  It  merges  all  prior  and 
contemporaneous  negotiations."     *     *     * 

The  final  question  for  consideration  is  whether  or  not  punitive 
damages  are  recoverable  in  this  case.  We  have  above  reached  the 
conclusion  that  the  application  was  a  part  of  the  contract.  There- 
fore this  action  is  an  action  on  contract,  and,  unless  fraud  is  al- 
leged and  proved,  punitive  damages  cannot  be  recovered  for  the 
breach.  The  general  rule  is  thus  stated  in  Sedgwick  on  Damages 
(8th  Ed.)  §  603 :  "It  may  be  considered  to  be  established  that  the 
motives  of  the  defendant  in  breaking  his  contract  are  to  be  dis- 
regarded, and  consequently  exemplary  damages  are  not  recover- 
able." In  this  state,  however,  in  the  early  case  of  Rose  v.  Beattie, 
2  Nott.  &  McC.  538,  the  doctrine  was  suggested  that,  where  a 
breach  of  contract  is  accompanied  with  a  fraudulent  act,  punitive 
damages  are  recoverable,  but  not  for  a  breach  unaccompanied  by 
fraud.     This  principle  has  been  recently  laid  down  as  the  law  in 


WHEN    KECOVEUABLE 


189 


the  case  of  Welborn  v.  Dixon,  70  S.  C.  108,  49  S.  E.  232.  As  no 
fraudulent  act  is  here  alleged,  exemplary  damages  cannot  be  re- 
covered. .  . 
It  is  the  judgment  of  this  court  that  the  judgment  of  the  circuit 
<:ourt  be  reversed,  unless  plaintiff  surrender  all  of  the  judgment 
except  $15.43,  the  amount  of  the  note  given  by  plaintiff  to  de- 
fendant. 


2.  Torts  Which  Are  Also  Crimes 


HAUSER  V.  GRIFFITH. 
(Supreme  Court  of  Iowa,  1897.     102  Iowa,  215,  71  N.  W.  223.) 

Action  for  damages  for  an  assault  and  battery.     Judgment  for 
plaintiff,  and  defendant  appeals. 

Granger,  J.°  *  *  *  The  jury  was  permitted  to  find  exem- 
plary damages.  It  appeared  in  the  trial  of  this  case  that  in  the 
criminal  suit  a  fine  was  imposed  and  paid.  It  is  urged  that  that 
fact  should  defeat  an  allowance  of  exemplary  damages  in  this  case, 
because  otherwise  there  is  a  double  punishment.  That  the  claim 
has  strong  support  in  reason  hardly  admits  of  doubt,  but  a  con- 
trary rule  seems  to  have  obtained  in  this  state  since  the  case  of 
Hendrickson  v.  Kingsbury,  reported  in  21  Iowa,  379.  Each  party 
has  seized  upon  particular  language  in  that  case  for  support  of 
his  claim ;  but,  when  all  the  language  is  considered,  it  makes  the 
distinction  between  the  punishment  for  the  wrong  done  the  public, 
for  which  the  punishment  is  inflicted  in  the  criminal  action,  and 
that  done  to  the  individual,  for  which  punishment  may  be  imposed 
by  the  jury  in  the  civil  action.  Reddin  v.  Gates,  52  Iowa,  210,  2 
N.  W.  1079,  is  like  this  case  in  its  facts,  and  conclusive  of  it.  See, 
also.  Root  v.  Sturdivant,  70  Iowa,  55,  29  N.  W.  802.  That  other 
states  have  announced  a  different  rule  is  true,  but  a  review  of  the 
<:ases  would  be  of  no  use.     *     *     *     The  judgment  is  affirmed. 

8  Part  of  the  opiuion  is  omitted. 


190  EXEMPLARY   DAMAGES 


II.  Liability  of  Principal  for  Act  of  Agent  ^ 


GODDARD  V.  GRAND  TRUNK  RY.  OF  CANADA. 
(Supreme  Judicial   Court  of  Maine,  1869.     57  Me.  202,  2  Am.  Rep.  39.) 
Action  against  the  Grand  Trunk  Railway  of  Canada  to  recover 
damages  for  an  assault  made  on  a  passenger  by  a  brakeman  in 
defendant's  employment.    Verdict  for  $4,850. 

Walton,  J.^  Two  questions  are  presented  for  our  consideration : 
First,  is  the  common  carrier  of  passengers  responsible  for  the  will- 
ful misconduct  of  his  servant?  or,  in  other  words,  if  a  passenger 
who  has  done  nothing  to  forfeit  his  right  to  civil  treatment,  is  as- 
saulted and  grossly  insulted  by  one  of  the  carrier's  servants,  can 
he  look  to  the  carrier  for  redress?  and,  secondly,  if  he  can,  what  is 
the  measure  of  relief  which  the  law  secures  to  him?  These  are 
questions  that  deeply  concern,  not  only  the  numerous  railroad  and 
steamboat  companies  engaged  in  the  transportation  of  passengers, 
but  also  the  whole  traveling  public;  and  we  have  endeavored  to 
give  them  that  consideration  which  their  great  importance  has 
seemed  to  us  to  demand.     *     *     * 

It  appears  in  evidence,  that  the  plaintiff  was  a  passenger  in  the 
defendants'  railway  car ;  that,  on  request,  he  surrendered  his  ticket 
to  a  brakeman  employed  on  the  train,  who,  in  the  absence  of  the 
conductor,  was  authorized  to  demand  and  receive  it;  that  the 
brakeman  afterwards  approached  the  plaintiff,  and,  in  language 
coarse,  profane,  and  grossly  insulting,  denied  that  he  had  either 
surrendered  or  shown  him  his  ticket;  that  the  brakeman  called  the 
plaintiff  a  liar,  charged  him  with  attempting  to  avoid  the  payment 
of  his  fare,  and  with  having  done  the  same  thing  before,  and  threat- 
ened to  split  his  head  open  and  spill  his  brains  right  there  on  the 
spot ;  that  the  brakeman  stepped  forward  and  placed  his  foot  upon 
the  seat  on  which  the  plaintiff  was  sitting,  and,  leaning  over  the 
plaintiff',  brought  his  fist  close  down  to  his  face,  and  shaking  it 
violently,  told  him  not  to  yip,  if  he  did  he  would  spot  him,  that 
he  was  a  damned  liar,  that  he  never  handed  him  his  ticket,  that  he 
did  not  believe  he  paid  his  fare  either  way ;  that  this  assault  was 
continued  some  fifteen  or  twenty  minutes,  and  until  the  whistle 
sounded  for  the  next  station;  that  there  were  several  passengers 
present  in  the  car,  some  of  whom  were  ladies,  and  that  they  were 
all  strangers  to  the  plaintiff";  that  the  plaintiff  was  at  the  time  in 
feeble  health,  and  had  been  for  some  time  under  the  care  of  a  phy- 
sician, and  at  the  time  of  the  assault  was  reclining  languidly  in 

7  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  91. 

8  Part  of  the  opinion  is  omitted. 


LIABILITY    OF    PRINCIPAL    FOR   ACT    OF   AGENT  191 

his  seat;  that  he  had  neither  said  nor  done  anything-  to  provoke 
the  assault ;  that,  in  fact,  he  had  paid  his  fare,  had  received  a 
ticket,  and  had  surrendered  it  to  this  very  brakeman  who  delivered 
it  to  the  conductor  only  a  few  minutes  before,  by  whom  it  was 
afterwards  produced  and  identified :  that  the  defendants  were  im- 
mediately notified  of  the  misconduct  of  the  brakeman,  but,  instead 
of  discharging  him,  retained  him  in  his  place;  that  the  brakeman 
was  still  in  the  defendants'  employ  when  the  case  was  tried  and 
was  present  in  court  during  the  trial,  but  was  not  called  as  a  wit- 
ness, and  no  attempt  was  made  to  justify  or  excuse  his  conduct. 

Upon  this  evidence  the  defendants  contend  that  they  are  not 
liable,  because,  as  they  say,  the  brakeman's  assault  upon  the  plain- 
tiff was  willful  and  malicious,  and  was  not  directly  nor  impliedly 
authorized  by  them.  They  say  the  substance  of  the  whole  case 
is  this,  that  "the  master  is  not  responsible  as  a  trespasser,  unless 
by  direct  or  implied  authority  to  the  servant,  he  consents  to  the 
unlawful  act."     *     *     * 

What  is  the  measure  of  relief  which  the  law  secures  to  the  in- 
jured party;  or,  in  other  words,  can  he  recover  exemplary  dam- 
ages? We  hold  that  he  can.  The  right  of  the, jury  to  give  exem- 
plary damages  for  injuries  wantonly,  recklessly,  or  maliciously  in- 
flicted, is  as  old  as  the  right  of  trial  by  jury  itself;  and  is  not,  as 
many  seem  to  suppose,  an  innovation  upon  the  rules  of  the  com- 
mon law.  It  was  settled  in  England  more  than  a  century  ago. 
*     *     * 

But  it  is  said  that  if  the  doctrine  of  exemplary  damages  must  be 
regarded  as  established  in  suits  against  natural  persons  for  their 
own  willful  and  malicious  torts,  it  ought  not  to  be  applied  to  cor- 
porations for  the  torts  of  their  servants,  especially  where  the  tort 
is  committed  by  a  servant  of  so  low  a  grade  as  a  brakeman  on  a 
railway  train,  and  the  tortious  act  was  not  directly  or  impliedly 
authorized  nor  ratified  by  the  corporation ;  and  several  cases  are 
cited  by  the  defendants'  counsel,  in  which  the  courts  seem  to  have 
taken  this  view  of  the  law;  but  we  have  carefully  examined  these 
cases,  and  in  none  of  them  was  there  any  evidence  that  the  servant 
acted  wantonly  or  maliciously;  these  were  simply  cases  of  mis- 
taken duty ;  and  what  these  same  courts  would  have  done  if  a 
case  of  such  gross  and  outrageous  insult  had  been  before  them,  as 
is  now  before  us,  it  is  impossible  to  say ;  and  long  experience  has 
shown  that  nothing  is  more  dangerous  than  to  rely  upon  the  ab- 
stract reasoning  of  courts,  when  the  cases  before  them  did  not  call 
for  the  application  of  the  doctrines  which  their  reasoning  is  intend- 
ed to  establish. 

We  have  given  to  this  objection  much  consideration,  as  it  was 
our  duty  to  do,  for  the  presiding  judge  declined  to  instruct  the  jury 
that  if  the  acts  and  words  of  the  defendants'  servant  were  not  di- 
rectly nor  impliedly  authorized  nor  ratified  by  the  defendant,  the 


102  EXEMPLARY   DAMAGES 

plaintiff  could  not  recover  exemplary  damages.  We  confess  that 
it  seems  to  us  that  there  is  no  class  of  cases  where  the  doctrine  of 
exemplary  damages  can  be  more  beneficially  applied  than  to  rail- 
road corporations  in  their  capacity  of  common  carriers  of  passen- 
gers; and  it  might  as  well  not  be  applied  to  them  at  all  as  to  limit 
its  application  to  cases  where  the  servant  is  directly  or  impliedly 
commanded  by  the  corporation  to  maltreat  and  insult  a  passenger, 
or  to  cases  where  such  an  act  is  directly  or  impliedly  ratified ;  for 
no  such  cases  will  ever  occur.  A  corporation  is  an  imaginary  being. 
It  has  no  mind  but  the  mind  of  its  servants ;  it  has  no  voice  but 
the  voice  of  its  servants;  and  it  has  no  hands  with  which  to  act 
but  the  hands  of  its  servants.  All  its  schemes  of  mischief,  as  well 
as  its  schemes  of  public  enterprise,  are  conceived  by  human  minds 
and  executed  by  human  hands ;  and  these  minds  and  hands  are 
its  servants'  minds  and  hands.  All  attempts,  therefore,  to  distin- 
guish between  the  guilt  of  the  servant  and  the  guilt  of  the  corpora- 
tion ;  or  the  malice  of  the  servant  and  the  malice  of  the  corpora- 
tion ;  or  the  punishment  of  the  servant  and  the  punishment  of  the 
corporation,  is  sheer  nonsense;  and  only  tends  to  confuse  the  mind 
and  confound  the  judgment.  Neither  guilt,  malice,  nor  suffering 
is  predicable  of  this  ideal  existence,  called  a  corporation.  And  yet 
under  cover  of  its  name  and  authority,  there  is  in  fact  as  much  wick- 
edness, and  as  much  that  is  deserving  of  punishment,  as  can  be 
found  anywhere  else.  And  since  these  ideal  existences  can  neither 
be  hung,  imprisoned,  whipped,  or  put  in  the  stocks — since  in  fact 
no  corrective  influence  can  be  brought  to  bear  upon  them  except 
that  of  pecuniary  loss — it  does  seem  to  us  that  the  doctrine  of  ex- 
emplary damages  is  more  beneficial  in  its  application  to  them,  than 
in  its  application  to  natural  persons.  If  those  who  are  in  the  habit 
of  thinking  that  it  is  a  terrible  hardship  to  punish  an  innocent  cor- 
poration for  the  wickedness  of  its  agents  and  servants,  will  for  a 
moment  reflect  upon  the  absurdity  of  their  own  thoughts,  their 
anxiety  will  be  cured.  Careful  engineers  can  be  selected  who  will 
not  run  their  trains  into  open  draws;  and  careful  baggage  men 
can  be  secured,  who  will  not  handle  and  smash  trunks  and  band- 
boxes as  is  now  the  universal  custom;  and  conductors  and  brake- 
men  can  be  had  who  will  not  assault  and  insult  passengers ;  and  if 
the  courts  will  only  let  the  verdicts  of  upright  and  intelligent  juries 
alone,  and  let  the  doctrine  of  exemplary  damages  have  its  legitimate 
influence,  we  predict  these  great  and  growing  evils  will  be  very 
much  lessened,  if  not  entirely  cured.  There  is  but  one  vulnerable 
point  about  these  ideal  existences,  called  corporations ;  and  that  is, 
the  pocket  of  the  monied  power  that  is  concealed  behind  them  ;  and 
if  that  is  reached  they  will  wince.  When  it  is  thoroughly  under- 
stood that  it  is  not  profitable  to  employ  careless  and  indifferent 
agents,  or  reckless  and  insolent  servants,  better  men  will  take  their 
places,  and  not  before. 


LIABILITY    OF   PUINCIPAL    FOR   ACT   OF    AGENT  193 

It  is  our  judo-ment,  therefore,  that  actions  against  corporations, 
for  the  willful  and  malicious  acts  of  their  agents  and  servants  in 
executing  the  business  of  the  corporation,  should  not  form  excep- 
tions to  "the  rule  allowing  exemplary  damages.  On  the  contrary, 
we  think  this  is  the  very  class  of  cases,  of  all  others,  where  it  will 
do  the  most  good,  and  where  it  is  most  needed.  And  in  this  con- 
clusion we  are  sustained  by  several  of  the  ablest  courts  in  the 
country.     *     *     * 

But  the  defendants  say  that  the  damages  awarded  by  the  jury 
are  excessive,  and  they  move  to  have  the  verdict  set  aside  and  a 
new  trial  granted  for  that  reason.  That  the  verdict  in  this  case 
is  highly  punitive,  and  was  so  designed  by  the  jury,  cannot  be 
doubted;  but  by  whose  judgment  is  it  to  be  measured  to  deter- 
mine whether  or  not  it  is  excessive?    What  standard  shall  be  used? 

*  *  *  It  is  the  wisdom  of  the  law  to  suppose  that  the  judgment 
of  the  jury  is  more  likely  to  be  right  than  the  judgment  of  the 
court,  for  it  is  to  the  former  and  not  to  the  latter  that  the  duty 
of  estimating  damages  is  confided.  Unless  the  damages  are  so 
large  as  to  satisfy  the  court  that  the  verdict  was  not  the  result  of 
an  honest  exercise  of  judgment,  they  have  no  right  to  set  it  aside. 

A  careful  examination  of  the  case  fails  to  satisfy  us  that  the 
jury  acted  dishonestly,  or  that  they  made  any  mistake  in  their  ap- 
plication of  the  doctrine  of  exemplary  damages.  We  have  no  doubt 
that  the  highly  punitive  character  of  their  verdict  is  owing  to  the 
fact  that,  after  Jackson's  misconduct  was  known  to  the  defendants, 
they  still  retained  him  in  their  service.  The  jury  undoubtedly  felt 
that  it  was  due  to  the  plaintiff,  and  due  to  every  other  traveler 
upon  that  road,  to  have  him  instantly  discharged;  and  that  to 
retain  him  in  his  place,  and  thus  shield  and  protect  him  against 
the  protestation  of  the  plaintiff,  made  to  the  servant  himself  at  the 
time  of  the  assault,  that  he  would  lose  his  place,  was  a  practical 
ratification  and  approval  of  the  servant's  conduct,  and  would  be 
so  understood  by  him  and  by  every  other  servant  on  the  road. 

*  *     -^.• 

It  will  be  an  impressive  lesson  to  these  defendants,  and  to  the 
managers  of  other  lines  of  public  travel,  of  the  risk  they  incur  when 
they  retain  in  their  service  servants  known  to  be  reckless,  ill-man- 
nered, and  unfit  for  their  places.  And  it  will  encourage  those  who 
may  suffer  insult  and  violence  at  the  hands  of  such  servants,  not 
to  retaliate  or  attempt  to  become  their  own  avengers,  as  is  too  often 
done,  but  to  trust  to  the  law  and  to  the  courts  of  justice,  for  the 
redress  of  their  grievances.  It  will  say  to  them,  be  patient  and 
law-abiding,  and  your  redress  shall  surely  come,  and  in  such  meas- 
ure as  will  not  add  insult  to  your  previous  injury.     * 


4<   0 


"See,  iilso,  Liltle  Ko'U  Ky.  &  Electric  Co.  v.  Dol)l)ius,  iiost,  p.  224. 
Cooi.EY  Dam.— 1.3 


194  EXEMPLARY   DAMAGES 


LAKE  SHORE  &  M.  S.  RY.  CO.  v.  PRENTICE. 

(Supreme  Court  of  the  United  States,  1893.     147  U.  S.  101,  13  Sup.  Gt  261, 

37  L.  Ed.  97.) 

On  October  12,  1886,  the  plaintiff,  his  wife,  and  a  number  of 
other  persons  were  passengers,  holding  excursion  tickets,  on  a  reg- 
ular passenger  train  of  the  defendant's  railroad,  from  Norwalk,  in 
Ohio,  to  Chicago,  in  Illinois.  During  the  journey  the  plaintiff  pur- 
chased of  several  passengers  their  return  tickets,  which  had  nothing 
on  them  to  show  that  they  were  not  transferable.  The  conductor 
of  the  train,  learning  this,  and  knowing  that  the  plaintiff  had  been 
guilty  of  no  offense  for  which  he  was  liable  to  arrest,  telegraphed 
for  a  police  officer,  an  employe  of  the  defendant,  who  boarded  the 
train  as  it  approached  Chicago.  The  conductor  thereupon,  in  a 
loud  and  angry  voice,  pointed  out  the  plaintiff  to  the  officer,  and 
ordered  his  arrest;  and  the  officer,  by  direction  of  the  conductor, 
and  without  any  warrant  or  authority  of  law,  seized  the  plaintiff, 
and  rudely  searched  him  for  weapons  in  the  presence  of  the  other 
passengers,  hurried  him  into  another  car,  and  there  sat  down  b}^ 
him  as  a  watch,  and  refused  to  tell  him  the  cause  of  his  arrest,  or 
to  let  him  speak  to  his  wife.  While  the  plaintiff  was  being  removed 
into  the  other  car,  the  conductor,  for  the  purpose  of  disgracing 
and  humiliating  him  with  his  fellow  passengers,  openly  declared 
that  he  was  under  arrest,  and  sneeri-ngly  said  to  the  plaintiff's  wife, 
"Where's  your  doctor  now?"  On  arrival  at  Chicago,  the  conductor 
refused  to  let  the  plaintiff  assist  his  wife  with  her  parcels  in  leav- 
ing the  train,  or  to  give  her  the  check  for  their  trunk ;  and,  in  the 
presence  of  the  passengers  and  others,  ordered  him  to  be  taken  to 
the  station  house,  and  he  was  forcibly  taken  there,  and  detained 
until  the  conductor  arrived;  and  knowing  that  the  plaintiff  had 
been  guilty  of  no  offense,  entered  a  false  charge  against  him  of 
disorderly  conduct,  upon  which  he  gave  bail  and  was  released,  and 
of  which,  on  appearing  before  a  justice  of  the  peace  for  trial  on 
the  next  day,  and  no  one  appearing  to  prosecute  him,  he  was  finally 
discharged. 

Gray,  J.^"  *  *  *  'j^j-^g  single  question  presented  for  our  de- 
cision, is  whether  a  railroad  corporation  can  be  charged  with  puni- 
tive or  exemplary  damages  for  the  illegal,  wanton,  and  oppressive 
conduct  of  a  conductor  of  one  of  its  trains  tovv^ards  a  passenger. 

Exemplary  or  punitive  damages,  being  awarded,  not  by  way  of 
compensation  to  the  sufferer,  but  by  way  of  punishment  of  the 
offender,  and  as  a  warning  to  others,  can  only  be  awarded  against 
one  who   has   participated   in  the  oft"ense.     A  principal,  therefore, 

10  Part  of  tlie  opinion  is  omitted. 


LIABILITY   OF   PRINCIPAL   FOR   ACT   OF   AGENT  195 

though  of  course  liable  to  make  compensation  for  injuries  done  by 
his  agent  within  the  scope  of  his  employment,  cannot  be  held  liable 
for  exemplary  or  punitive  damages,  merely  by  reason  of  wanton, 
oppressive,  or  malicious  intent  on  the  part  of  the  agent.  This  is 
clearly  shown  by  the  judgment  of  this  court  in  the  case  of  The 
Amiable  Nancy,  3  Wheat.  546,  4  L.  Ed.  456.     *     *     * 

The  rule  thus  laid  down  is  not  peculiar  to  courts  of  admiralty ; 
for,  as  stated  by  the  same  eminent  judge  two  years  later,  those 
courts  proceed,  in  cases  of  tort,  upon  the  same  principles  as  courts 
of  common  law,  in  allowing  exemplary  damages,  as  well  as  dam- 
ages by  way  of  compensation  or  remuneration  for  expenses  in- 
curred, or  injuries  or  losses  sustained,  by  the  misconduct  of  the 
other  party.  ^Manufacturing  Co.  v.  Fiske,  2  Mason,  119,  121,  Fed. 
Cas.  No.  1,681.  In  Keene  v.  Lizardi,  8  La.  26,  33,  Judge  Martin 
said:  "It  is  true,  juries  sometimes  very  properly  give  what  is 
called  'smart  money.'  They  are  often  warranted  in  giving  vindic- 
tive damages  as  a  punishment  inflicted  for  outrageous  conduct ; 
but  this  is  only  justifiable  in  an  action  against  the  wrongdoer,  and 
not  against  persons  who,  on  account  of  their  relation  to  the  offender, 
are  only  consequentially  liable  for  his  acts,  as  the  principal  is  re- 
sponsible for  the  acts  of  his  factor  or  agent."     *     *     * 

The  rule  has  the  same  application  to  corporations  as  to  individ- 
uals. This  court  has  often,  in  cases  of  this  class,  as  well  as  in  other 
cases,  affirmed  the  doctrine  that  for  acts  done  by  the  agents  of  a 
corporation,  in  the  course  of  its  business  and  of  their  employment, 
the  corporation  is  responsible  in  the  same  manner  and  to  the  same 
extent  as  an  individual  is  responsible  under  similar  circumstances. 

A  corporation  is  doubtless  liable,  like  an  individual,  to  make  com- 
pensation for  any  tort  committed  by  an  agent  in  the  course  of  his 
employment,  although  the  act  is  done  wantonly  and  recklessly,  or 
against  the  express  orders  of  the  principal.  Railroad  Co.  v.  Derby, 
14  How.  468,  14  L.  Ed.  502 ;  Steamboat  Co.  v.  Brockett,  121  U.  S. 
637,  7  Sup.  Ct.  1039,  30  L.  Ed.  1049 ;  Howe  v.  Newmarch,  12  Allen 
(Mass.)  49;  Ramsden  v.  Railroad  Co.,  104  Mass.  117,  6  Am.  Rep. 
200.  A  corporation  may  even  be  held  liable  for  a  libel,  or  a  mali- 
cious prosecution,  by  its  agent  within  the  scope  of  his  employment ; 
and  the  malice  necessary  to  support  either  action  if  proved  in  the 
agent,  may  be  imputed  to  the  corporation.  *  *  *  But,  as  well 
observed  by  Mr.  Justice  Field,  now  Chief  Justice  of  Massachusetts : 
"The  logical  difficulty  of  imj)uting  the  actual  malice  or  fraud  of  an 
agent  to  his  principal  is  perhaps  less  when  the  principal  is  the  per- 
son than  when  it  is  a  corporation  ;  still  the  foundation  of  the  im- 
putation is  not  that  it  is  inferred  that  the  principal  actually  partici- 
])ated  in  the  malice  or  fraud,  but,  the  act  having  been  done  for  his 
benefit  by  his  agent  acting  within  the  scope  of  his  employment  in 
his  business,  it  is  just  that  he  siiould  be  held  responsible  for  it  in 


196  EXEMPLARY   DAMAGES 

damages."  Lothrop  v.  Adams,  133  ]\Iass.  471,  480,  481,  43  Am.  Rep. 
528. 

Though  the  principal  is  liable  to  make  compensation  for  a  libel 
published  or  a  malicious  prosecution  instituted  by  his  agent,  he  is 
not  liable  to  be  punished  by  exemplary  damages  for  an  intent  in 
which  he  did  not  participate.  In  Detroit  Daily  Post  Co.  v.  ^ic- 
Arthur,  16  :Mich.  447,  in  Eviston  v.  Cramer,  b7  Wis.  570,  15  N.  W. 
760,  and  in  Haines  v.  Schultz,  50  N.  J.  Law,  481,  14  Atl.  488,  above 
cited,  it  was  held  that  the  publisher  of  a  newspaper,  when  sued 
for  a  libel  published  therein  by  one  of  his  reporters  without  his 
knowledge,  was  liable  for  compensatory  damages  only,  and  not  for 
punitive  damages,  unless  he  approved  or  ratified  the  publication ; 
and  in  Haines  v.  Schultz  the  Supreme  Court  of  New  Jersey  said 
of  punitive  damages :  ''The  right  to  award  them  rests  primarily 
upon  the  single  ground — wrongful  motive."  "It  is  the  wrongful 
personal  intention  to  injure  that  calls  forth  the  penalty.  To  this 
wrongful  intent  knowledge  is  an  essential  prerequisite."  "Absence 
of  all  proof  bearing  on  the  essential  question,  to  wit,  defendant's 
motive,  cannot  be  permitted  to  take  the  place  of  evidence,  without 
leading  to  a  most  dangerous  extension  of  the  doctrine  respondeat 
superior."  50  N.  J.  Law,  484,  485,  14  Atl.  488,  489.  Whether  a 
principal  can  be  criminally  prosecuted  for  a  libel  published  by  his 
agent  without  his  participation  is  a  question  on  which  the  authori- 
ties are  not  agreed;  and,  where  it  has  been  held  that  he  can,  it  is 
admitted  to  be  an  anomaly  in  the  criminal  law.     *     *     * 

No  doubt,  a  corporation,  like  a  natural  person,  may  be  held  liable 
in  exemplary  or  punitive  damages  for  the  act  of  an  agent  within 
the  scope  of  his  employment,  provided  the  criminal  intent,  nec- 
essary to  warrant  the  imposition  of  such  damages,  is  brought  home 
to  the  corporation.     *     *     * 

Independently  of  this,  in  the  case  of  a  corporation,  as  of  an  in- 
dividual, if  any  wantonness  or  mischief  on  the  part  of  the  agent, 
acting  within  the  scope  of  his  employment,  causes  additional  in- 
jury to  the  plaintiff  in  body  or  mind,  the  principal  is,  of  course,. 
liable  to  make  compensation  for  the  whole  injury  suffered.     *     *     * 

In  the  case  at  bar,  the  defendant's  counsel  having  admitted  in 
open  court  "that  the  arrest  of  the  plaintiff  was  wrongful,  and  that 
he  was  entitled  to  recover  actual  damages  therefor,"  the  jury  were 
rightly  instructed  that  he  was  entitled  to  a  verdict  which  would 
fully  compensate  him  for  the  injuries  sustained,  and  that  in  com- 
pensating him  the  jury  were  authorized  to  go  beyond  his  outlay 
in  and  about  this  suit,  and  to  consider  the  humiliation  and  outrage 
to  which  he  had  been  subjected  by  arresting  him  publicly  without 
warrant  and  without  cause,  and  by  the  conduct  of  the  conductor, 
such  as  his  remark  to  the  plaintift''s  wife. 

But  the  court,  going  beyond  this,  distinctly  instructed  the  jury 
that,  "after  agreeing  upon  the  amount  which  will  fully  compensate 


LIABILIIY   OF   PUINCIPAL   FOU   ACT   OF   AGENT  197 

the  plaintiff  for  his  outlay  and  injured  feelings,"  they  might  "add 
something  by  way  of  punitive  damages  against  the  defendant, 
which  is  sometimes  called  'smart  money,'''  if  they  "were  "satisfied 
that  the  conductor's  conduct  was  illegal,  wanton,  and  oppressive." 

The  jury  were  thus  told,  in  the  plainest  terms,  that  the  corpora- 
tion, was  responsible  in  punitive  damages  for  wantonness  and  op- 
pression on  the  part  of  the  conductor,  although  not  actually  parti- 
cipated in  by  the  corporation.  This  ruling  appears  to  us  to  be 
inconsistent  with  the  principles  above  stated,  unsupported  by  any 
decision  of  this  court,  and  opposed  to  the  preponderance  of  well- 
considered  precedents.     *     *     * 

The  president  and  general  manager,  or,  in  his  absence,  the  vice 
president  in  his  place,  actually  wielding  the  whole  executive  power 
of  the  corporation,  may  well  be  treated  as  so  far  representing  the 
corporation  and  identified  with  it  that  any  wanton,  malicious,  or 
oppressive  intent  of  his,  in  doing  wrongful  acts  in  behalf  of  the 
corporation  to  the  injury  of  others,  may  be  treated  as  the  intent 
of  the  corporation  itself;  but  the  conductor  of  a  train,  or  other 
subordinate  agent  or  servant  of  a  railroad  corporation,  occupies 
a  very  different  position,  and  is  no  more  identified  with  his  princi- 
pal, so  as  to  affect  the  latter  with  his  own  unlawful  and  criminal 
intent,  than  any  agent  or  servant  standing  in  a  corresponding  re- 
lation to  natural  persons  carrying  on  a  manufactory,  a  mine,  or  a 
house  of  trade  or  commerce. 

The  law  api)licable  to  this  case  has  been  found  nowhere  better 
stated  than  by  Mr.  Justice  Brayton,  afterwards  Chief  Justice  of 
Rhode  Island,  in  the  earliest  reported  case  of  the  kin,d,  in  which 
a  passenger  sued  a  railroad  corporation  for  his  wrongful  expulsion 
from  a  train  by  the  conductor,  and  recovered  a  verdict,  but  ex- 
cepted to  an  instruction  to  the  jury  that  "punitive  or  vindictive 
damages,  or  smart  money,  were  not  to  be  allowed  as  against  the 
principal,  unless  the  principal  participated  in  the  wrongful  act  of 
the  agent,  expressly  or  impliedly,  by  his  conduct  authorizing  it  or 
approving  it,  either  before  or  after  it  was  committed."  This  in- 
struction was  held  to  be  right,  for  the  following  reasons:  "In  cases 
where  punitive  or  exemplary  damages  have  been  assessed,  it  has 
been  done,  upon  evidence  of  such  willfulness,  recklessness,  or  wick- 
edness, on  the  part  of  the  party  at  fault,  as  amounted  to  crimi- 
nality, which  for  the  good  of  society  and  warning  to  the  individual, 
ought  to  be  punished.  If  in  such  cases,  or  in  any  case  of  a  civil 
nature,  it  is  the  policy  of  the  law  to  visit  upon  the  offender  such 
exemplary  damages  as  will  ojierate  as  punishment,  and  teach  the 
lesson  of  caution  to  prevent  a  repetition  of  criminality,  yet  we  do 
not  see  how  such  damages  can  be  allowed,  where  the  principal  is 
prosecuted  for  the  tortious  act  of  his  servant,  unless  there  is  proof 
in  the  cause  to  implicate  the  principal  and  make  him  particeps 
criminis  of  his  agent's  act.     No  man  should  be  punished  for  that 


198  EXEMPLARY  DAMAGES 

of  which  he  is  not  guilty."  "Where  the  proof  does  not  implicate 
the  principal,  and,  however  wicked  the  servant  may  have  been,  the 
principal  neither  expressly  nor  impliedly  authorizes  or  ratifies  the 
act,  and  the  criminality  of  it  is  as  much  against  him  as  against 
any  other  member  of  society,  we  think  it  is  quite  enough  that  he 
shall  be  liable  in  compensatory  damages  for  the  injury  sustained 
in  consequence  of  the  wrongful  act  of  a  person  acting  as  his  serv- 
ant."   Hagan  v.  Railroad  Co.,  3  R.  I.  88,  91,  62  Am.  Dec.  Z77 .  *  *  * 

It  must  be  admitted  that  there  is  a  wide  divergence  in  the  deci- 
sions of  the  state  courts  upon  this  question,  and  that  corporations 
have  been  held  liable  for  such  damages  under  similar  circumstances 
in  New  Hampshire,  in  Maine,  and  in  many  of  the  Western  and 
Southern  states.  But  of  the  three  leading  cases  on  that  side  of  the 
question,  Hopkins  v.  Railroad  Co.,  36  N.  H.  9,  72  Am.  Dec.  287, 
can  hardly  be  reconciled  with  the  later  decisions  in  Fay  V.  Parker, 
53  N.  H.  342,  16  Am.  Rep.  270,  and  Bixby  v.  Dunlap,  56  N.  H.  456, 
22  Am.  Rep.  475 ;  and  in  Goddard  v.  Railway  Co.,  57  Me.  202,  228, 
2  Am.  Rep.  39,  and  Railway  Co.  v.  Dunn,  19  Ohio  St.  162,  590,  2 
Am.  Rep.  382,  there  were  strong  dissenting  opinions.  In  many,  if 
not  most,  of  the  other  cases,  either  corporations  were  put  upon 
different  grounds  in  this  respect  from  other  principals,  or  else  the 
distinction  between  imputing  to  the  corporation  such  wrongful  act 
and  intent  as  would  render  it  liable  to  make  compensation  to  the 
person  injured,  and  imputing  to  the  corporation  the  intent  neces- 
sary to  be  established  in  order  to  subject  it  to  exemplary  damages 
by  way  of  punishment,  was  overlooked  or  disregarded. 

Most  of  the  cases  on  both  sides  of  the  question,  not  specifically 
cited  above,  are  collected  in  1  Sedg.  Dam.  (8th  Ed.)  §  380. 

In  the  case  at  bar,  the  plaintiff  does  not  appear  to  have  contended 
at  the  trial,  or  to  have  introduced  any  evidence  tending  to  show, 
that  the  conductor  was  known  to  the  defendant  to  be  an  unsuitable 
person  in  any  respect,  or  that  the  defendant  in  any  way  partici- 
pated in,  approved,  or  ratified  his  treatment  of  the  plaintiff;  nor 
did  the  instructions  given  to  the  jury  require  them  to  be  satisfied 
of  any  such  fact  before  awarding  punitive  damages ;  but  the  only 
fact  which  they  were  required  to  find,  in  order  to  support  a  claim 
for  punitive  damages  against  the  corporation,  was  that  the  con- 
ductor's illegal  conduct  was  wanton  and  oppressive.  For  this  er- 
ror, as  we  cannot  know  how  much  of  the  verdict  was  intended  by 
the  jury  as  a  compensation  for  the  plaintiff's  injury,  and  how  much 
by  way  of  punishing  the  corporation  for  an  intent  in  which  it  had 
no  part,  the  judgment  must  be  reversed.     *     *     * 


PLEADING    AND   PKACTICE  199 

PLEADING  AND  PRACTICE 
I.  Allegation  of  Damage — The  Ad  Damnum  * 


DAVIS  V.  BOWERS  GRANITE  CO. 
(Supreme  Court  of  Vermont,  1903.     75  Vt.  286,  54  Atl.  1084.) 

Trespass,  with  a  count  in  trover,  by  Chas.  R.  Davis  against  the 
Bowers  Granite  Company.  There  was  judgment  for  plaintiff  and 
defendant  brings  exceptions. 

Watson,  J.^  This  action  is  trespass  de  bonis  asportatis,  with  a 
count  in  trover  for  a  horse  and  wagon.  The  ad  damnum  is  $200. 
The  taking  and  conversion  were  on  the  3d  da}'  of  September,  1894. 
There  was  no  evidence  that  the  property  was  worth  at  the  time 
of  the  conversion  more  than  $185,  nor  to  show  any  damages  in  ex- 
cess of  that  sum.  The  jury  returned  a  verdict  for  the  plaintifif  to 
recover  $204.05.  After  verdict,  and  before  judgment,  the  plaintifif 
was  permitted  to  remit  so  much  of  the  verdict  as  was  in  excess 
of  $200.  The  defendant  moved  that  the  verdict  be  set  aside  on 
the  ground  that  it  was  not  warranted  by  the  evidence,  and  that  it 
was  in  contradiction  of  it.  After  the  plaintiff  filed  his  remittitur, 
the  defendant's  motion  was  overruled,  and  judgment  rendered  for 
the  plaintiff  for  $200.  To  this  the  defendant  excepted,  and  thereon 
he  now  contends  that,  as  there  was  no  evidence  of  any  damages 
in  excess  of  $185,  the  remittitur,  if  allowed,  should  have  been  for 
all  in  excess  of  that  sum. 

In  assessing  the  damages,  it  was  legitimate  for  the  jury  to  con- 
sider not  only  the  value  of  the  property  at  the  time  of  the  con- 
version, but  also  the  time  which  had  elapsed  since  the  conversion, 
to  determine  the  fair  compensation  to  the  plaintiff  for  his  injury. 
Clement  v.  Spear,  56  Vt.  401.  Under  this  rule  it  cannot  be  said 
that  the  damages  found  were  not  warranted  by  the  evidence  and 
circumstances  of  the  case,  but,  this  action  being  one  sounding 
merely  in  damages,  the  plaintiff  could  recover  no  greater  sum  than 
he  had  declared  for.  It  was  within  the  province  of  the  court  to 
allow  the  plaintiff  to  reduce  his  verdict  to  that  sum  by  a  remittitur. 
and  then  to  render  judgment  accordingly.  Tarbell  v.  Tarbell.  60 
Vt.  486,  15  Atl.  104;  Crampton  v.  Valido  Marble  Co.,  60  Vt.  291, 
15  Atl.  153,  1  L.  R.  A.  120.     *     *     *     Judgment  afifirmed.^* 

1  For  disfiission  of  priiiciplos.  see  Hale  on  DnniaKes  (2(1  Ed.)  §  02. 

2  Tart  of  the  opinion  is  omit  toil. 

8  Tliat  pjaiiitiri  (iiiiiiot  recover  in  exce.ss  of  amount  tlaimcd,  see  McDermott 
V.  Severe,  ante,  p.  110. 


200  PLEADING  AND   PRACTICE 


II.  Allegation  of  Damage — Form  of  Statement  * 


WEST  CHICAGO  STREET  R.  CO.  v.  LEVY. 

(Supreme  Court  of  Illinois,  1899.     182  111.  525,  55  N.  E.  554.) 
Action  by  Emanuel  Levy  against  the  West  Chicago  Street  Rail- 
road Company.     From  a  judgment  of  the  appellate  court  affirming 
a  judgment  for  plaintiff   (82  111.  App.  202),  defendant  appeals. 

Carter,  J.^  This  is  an  appeal  from  a  judgment  of  the  appellate 
court  affirming  a  judgment  of  the  circuit  court  of  Cook  county 
against  appellant  for  a  personal  injury.  Appellee  was  driving  in 
a  buggy  on  Robey  street  when  appellant's  electric  car  came  up 
from  behind  and  struck  the  buggy,  threw  appellee  out,  and  injured 
him.  Respecting  the  injury  and  damages,  the  declaration  alleged 
that  the  plaintiff  "was  severely  and  dangerously  ,cut,  bruised, 
wounded,  and  injured,  both  internally  and  externally;  that  plain- 
tiff's back  and  spine  and  brain  were  thereby  then  and  there  se- 
verely and  dangerously  and  permanently  injured,  and  divers  bones 
of  his  body,  arms,  and  limbs  were  then  and  there  and  thereby  frac- 
tured and  broken,  and  plaintiff  was  otherwise  severely,  dangerously, 
and  permanently  injured,  both  internally  and  externally'';  that,  on 
account  of  said  injuries,  "plaintiff  became  sick,  sore,  lame,  disor- 
dered, and  injured,  and  so  remained  for  a  long  space  of  time,  during 
which  said  time  he  suft'ered  great  bodily  pain  and  mental  anguish, 
and  still  is  languishing  and  intensely  suffering  in  body  and  in  mind, 
and  in  future  will  continue  to  suft'er,  from  the  effect  of  said  in- 
juries, for  the  rest  of  his  natural  life."  And  the  principal  assign- 
ment of  errors  relied  on  is  that  the  court  permitted  the  plaintiff 
to  prove  that  one  of  the  effects  of  his  injuries  was  atrophy  of  the 
optic  nerve,  and  consequent  impairment  of  his  eyesight.  .The  con- 
tention is  that  the  evidence  showed  that  this  condition  of  the  optic 
nerve  was  produced  by  defective  nutrition,  and  not  by,  any  direct 
injury  it  received  in  the  accident ;  that  it  was  not  the  natural  and 
necessary  result  of  the  injury;  and.  could  not,  therefore,  be  proved 
under  the  allegation  of  general  damages ;  and,  not  having  been 
alleged  as  special  damages,  could  not  be  proved  at  all. 

We  are  of  the  opinion  that  the  evidence  was  properly  admitted, 
under  the  allegations.  It  is  not  necessary  to  allege  specially  every 
injury  to  each  part  of  the  body,  in  actions  of  this  character,  in 
order  to  prove  them  on  the  trial.  Injury  to  the  back,  spine,  and 
brain  was  alleged,  and  the  evidence  tended  to  show  that  such  in- 
jury was  the  natural  and  proximate  cause  of  the  defective  nutrition 

4  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  93-93. 
6  Part  of  the  opinion  is  omitted. 


ALLEGATION    OF    DAMAGE — FOUM    OF    STATEMENT  201 

to  the  optic  nerve  and  impairment  of  the  plaintiff's  eyesight.  The 
damages  claimed,  therefore,  were  not  special,  but  general,  and  could 
be  recovered  without  being  declared  for  specially.  See  Railway 
Co.  V.  Ward,  135  111.  511,  26  N.  E.  520;  Railroad  Co.  v.  Meech, 
163  111.  305,  45  N.  E.  290;  Railroad  Co.  v.  Brown,  178  111.  187,  52 
X.  E.  864:  Tvson  v.  Booth,  100  Mass.  258;  Railway  Co.  v.  Blanker, 
ISO  111.  Z':>7,  54  N.  E.  309.     *     *     * 

There  was  no  error  committed  in  the  instructions,  and  we  can- 
not reverse  the  judgment  because  it  may  appear  that  the  damages 
are  excessive.     The  judgment  of  the  appellate  court  is  affirmed.*^ 


HEISTER  V.  LOO:\IIS. 

(Supreme   Court  of  Michigan,  ISSl.     47  Mich.   16,   10  N.   W.   GO.) 

CooLEY,  J.''  Loomis  sued  Heister  in  trespass  for  an  assault  and 
battery.  *  *  *  On  the  cross-examination  of  the  plaintiff,  de- 
fendant sought  to  show  that,  on  the  previous  Sunday  evening  in 
passing  his  house  the  plaintiff  had  stopped  in  front  of  it  and  used 
vile  and  abusive  language  to  his  wife.  Repeated  questions  put  for 
this  purpose  were  objected  to  by  the  plaintiff  and  ruled  out.  This 
ruling  was  correct.  The  language  attributed  to  the  plaintiff  was 
exceedingly  provoking,  and  if  a  battery  had  followed  immediately, 
a  jury  might  possibly  have  excused  it,  or  dealt  with  it  leniently. 
But  the  law  does  not  and  cannot,  consistent  with  the  safety  of 
society,  admit  the  provocation  of  words  as  an  excuse  for  blows 
given,  after  the  blood  has  had  time  and  opportunity  to  cool.  To 
do  so  would  be  to  encourage  parties  injured  or  thinking  themselves 
injured  by  the  misconduct  of  others,  to  take  into  their  own  hands 
the  punishment  of  the  offender,  and  violence  would  beget  violence, 
as  each  party  measured  out  according  to  the  vehemence  of  his 
passion  the  punishment  which  he  thought  or  imagined  his  enemy 
deserved.  The  safer  view  for  society  and  the  violated  law  is  to 
consider  the  fact  that  a  battery  has  been  committed  in  revenge  for 
a  previous  wrong,  as  an  aggravation  of  the  fault,  instead  of  an 
excuse  for  it. 

The  most  important  question  in  the  case  is  whether  the  court 
correctly  admitted  certain  evidence  of  special  damages.  The  dec- 
laration averred  that  the  plaintiff',  because  of  the  wounds,  bruises 
and  injuries  indicted  upon  him  by  the  defendant  "was  greatly  hin- 
dered and  prevented  from  doing  and  performing  his  work  and 
business  and  looking  after  and  attending  his  necessary  affairs  and 
avocations  for  a  long  space  of  time,"  etc.     The  plaintiff  testified 

« As  to  what  arf  sfx-cial  (laiiiM;;cs,  see,  al.so,  (Jronau  v.  I\iikUuck,  aute, 
p.  I'JT. 

7  Part  of  the  <)[iiiiii>ii  is  uiiiittcd. 


202  PLEADING    AND    PRACTICE 

that  his  business  was  that  of  a  farmer;  and  under  objection  he 
was  permitted  to  state  that  his  farm  was  a  grass  farm ;  that  when 
assaulted  he  was  about  half  through  cutting  his  hay ;  that  he  was 
bothered  some  about  help,  and  that  the  cutting  was  delayed  be- 
cause of  his  injury,  and  that  his  crop  of  hay  was  damaged  in  con- 
sequence at  least  $50.  The  defendant  contends  that  this  evidence 
of  injury  to  his  hay  was  inadmissible,  because  the  declaration  con- 
tained no  special  averments  which  would  fairly  apprise  the  defend- 
ant of  the  purpose  to  offer  it. 

We  have  been  very  liberal  in  this  state  in  receiving  evidence  of 
special  injuries  when  the  declaration  averred  them;  much  more 
so  than  the  courts  of  some  other  states.  The  cases  of  Chandler 
V.  Allison,  10  Mich.  460;  Allison  v.  Chandler,  11  Mich.  542;  Gil- 
bert V.  Kennedy,  22  Mich.  117;  and  Welch  v.  Ware,  32  Mich.  17, 
will  sufficiently  attest  the  fact.  The  difference  in  the  rules  appli- 
cable in  cases  of  contract  and  tort  has  also  been  carefully  marked 
and  emphasized.  Where  only  a  breach  of  contract  is  involved,  the 
defendant  is  not  to  be  made  liable  for  damages  beyond  what  may 
fairly  be  presumed  to  have  been  contemplated  by  the  parties  at 
the  time  the  contract  was  entered  into.  The  damage  allowed  in 
such  cases  must  be  something  which  could  have  been  foreseen 
and  reasonably  expected  and  to  which  the  defendant  can  be  deemed 
to  have  assented,  expressly  or  impliedly,  by  entering  into  the  con- 
tract. Borille,  C.  J.,  in  British,  etc.,  Co.  v.  Nettleship,  L.  R.  3  C. 
P.  499;  Hadley  v.  Boxendale,  9  Exch.  344;  Hopkins  v.  Sanford, 
38  Mich.  611.  But  in  cases  of  tort  the  plaintiff  does  not  assist  in 
making  the  case;  it  is  made  for  him  against  his  will  by  a  party 
who  chooses  his  own  time,  place,  and  manner  of  committing  the 
wrong,  and  if  the  nature  of  the  case  which  he  thus  makes  up  is 
such  that  the  elements  of  injury  are  uncertain  and  there  is  diffi- 
culty in  arriving  at  the  just  measure  of  redress,  the  consequences 
should  fall  upon  the  wrong-doer.  *'To  deny  the  injured  party  the 
right  to  recover  any  actual  damages  in  such  cases,  because  they 
are  of  a  nature  which  cannot  be  certainly  measured,  would  be  to 
enable  parties  to  profit  by  and  speculate  upon  their  own  wrongs, 
encourage  violence  and  invite  depredation."  Gilbert  v.  Kennedy, 
22  Mich.  117,  130. 

But  where  the  damages  are  such  as  do  not  follow  the  injury, 
as  a  necessary  consequence,  they,  should  be  specially  alleged  in 
the  declaration.  This  is  a  rule  of  fairness,  that  the  defendant  may 
know  what  case  it  is  intended  to  make  against  him,  and  be  pre- 
pared to  meet  it,  if  it  is  false  or  falsely  colored.  In  the  cases  above 
cited  from  our  own  reports,  the  allegations  of  special  damage 
were  very  full  and  specific.  But  in  this  case  there  is  only  a  gen- 
eral allegation  that  the  plaintiff  was  prevented  from  doing  and 
performing  his  necessary  business  and  looking  after  and  attend- 
ing his  necessary  affairs  and  avocations.     This  liability  may  well 


ALLEGATION    OF   DAMAGE — FORM    OF   STATEMENT  203 

be  said  to  flow  as  a  necessary  consequence  from  any  severe  injury; 
and  it  was  therefore  held  in  Tomhnson  v.  Derby,  43  Conn.  562, 
that  such  an  averment  could  only  be  construed  as  characterizing 
the  injury  and  indicating  its  extent  in  a  general  way,  and  that  it 
did  not  lay  the  foundation  for  proof  of  special  damages  in  a  par- 
ticular employment.  Evidence  that  plaintiff  was  engaged  in  a 
particular  business,  at  which  he  was  earning  $100  a  month,  was 
therefore  excluded  in  that  case,  though  the  declaration  was  similar 
to  the  one  here.  Taylor  v.  Monroe,  43  Conn.  36,  is  to  the  same 
effect.  Wade  v.  Le  Roy,  20  How.  34,  15  L.  Ed.  813,  must  be  re- 
garded as  opposed  to  these.     *     *     * 

The  general  spirit  of  our  decisions  would  perhaps  lead  to  a  more 
liberal  rule  than  that  applied  in  Connecticut  as  above  shown,  but 
would  not,  I  think,  support  the  ruling  complained  of  here.  What 
was  the  special  injury  complained  of  in  the  declaration?  Only 
that  the  plaintiff,  by  reason  of  the  battery,  was  greatly  hindered 
and  prevented  from  doing  and  performing  his  work  and  business, 
and  looking  after  and  attending  his  necessary  affairs  and  avoca- 
tions. Did  this  fairly  apprise  the  defendant  that  the  plaintiff  would 
seek  to  show,  not  merely  that  he  was  disabled  from  pursuing  a 
particular  employment  not  mentioned,  but  also  that,  by  reason  of 
the  inability  to  obtain  laborers,  his  property  went  to  ruin?  If 
there  is  a  natural  and  inseparable  connection  between  the  alleged 
injury  and  the  damage,  then  the  defendant  should  have  been  pre- 
pared to  meet  such  a  showing;  otherwise  he  was  entitled  to  more 
specific  allegations.  But  there  is  no  such  natural  and  inseparable 
connection;  the  circumstances  must  be  altogether  exceptional 
which  would  cause  a  farmer  to  lose  his  crops  because  he  could  not 
personally  gather  them.  Indeed,  according  to  the  plaintiff's  show- 
ing, the  circumstances  were  exceptional  here;  for  the  injury  to  the 
hay  is  attributed  to  the  difficulty  of  obtaining  l:^elp  to  save  it.  But 
the  defendant,  had  he  been  apprised  of  the  purpose  to  claim  for 
such  a  damage,  might  perhaps  have  shown  that  the  difficulty  was 
wholly  imaginary,  or  that  the  plaintiff  wilfully  suft'ered  his  hay 
to  be  injured,  when  he  might  have  avoided  it.  It  was  his  right  to 
make  such  a  showing,  if  the  facts  would  warrant  it.  But  he  could 
not  be  aware  of  the  necessity  until  he  was  notified  that  damage 
to  the  hay  by  reason  of  the  battery  was  claimed.  *  *  *  ^\^q 
judgment,  I  think,  should  be  reversed  and  a  new  trial  ordered. 


204  PLEADING   AND   PRACTICE 


III.  Province  of  Court  and  Jury 


BALTIMORE  &  O.  R.  CO.  v.  CARR. 

(Court  of  Appeals  of  Maryland,  1SS9.     71  Md.  135,  17  Atl.  1052.) 

AI.VEY,  C.  J.^  This  is  an  action  on  the  case  brought  by  the  ap- 
pellee against  the  appellant  for  the  wrongful  refusal  of  admission 
of  the  former  to  the  cars  of  the  latter.     *     *     * 

We  think,  however,  there  was  error  in  the  second  instruction  of 
the  court,  i-n  respect  to  the  question  of  damages.  The  jury  were 
instructed  that,  if  they  found  for  the  plaintiff  for  the  refusal  to  pass 
him  through  the  gate,  then  he  was  entitled  to  such  damages  as 
they  might  find  would,  under  all  the  circumstances,  compensate 
him  for  such  refusal.  This  left  the  whole  question  of  damages  at 
large,  without  definition  by  the  court,  to  the  discretion  of  the 
jury,  and  without  any  criterion  to  guide  them.  What  compensa- 
tion would  embrace — whether  actual  and  necessary  expenses  in- 
curred by  reason  of  the  refusal,  or  the  mere  delay,  or  disappoint- 
ment; in  pleasure,  or  the  possible  loss  in  business  transactions,  how- 
ever remote  or  indirect,  or  for  wounded  feelings — were  matters 
thrown  open  to  the  jury,  and  they  were  allowed  to  speculate  upon 
them  without  restraint.  This  is  not  justified  by  any  well-estab- 
lished rules  of  law.  In  the  case  of  Knight  v.  Egerton,  7  Exch. 
407,  where,  in  eft'ect,  such  an  instruction  was  given,  the  court  of 
exchequer  held  it  to  be  wholly  insufficient,  "and  that  it  was  the 
duty  of  the  judge  to  inform  the  jury  what  was  the  true  measure 
of  damages  on  the  issue,  whether  the  point  was  taken  or  not;''  and 
the  court  directed  a  new  trial  because  of  the  indefinite  instruction 
as  to  the  true  measure  of  damages.  The  rule  by  which  damages 
are  to  be  estimated  is,  as  a  general  principle,  a  question  of  law  to 
be  decided  by  the  court ;  that  is  to  say,  the  court  must  decide  and 
instruct  the  jury  in  respect  to  what  elements,  and  within  what 
limits,  damages  may  be  estimated  in  the  particular  action.  Marker 
V.  Dement,  9  Gill,  7,  52  Am.  Dec.  670;  Hadley  v.  Baxendale,  9 
Exch.  341,  354. 

The  simple  question  whether  damages  have  been  sustained  by 
the  breach  of  duty  or  the  violation  of  right,  and  the  extent  of  dam- 
ages sustained  as  the  direct  consequences  of  such  breach  of  duty 
or  violation  of  right,  are  matters  within  the  province  of  the  jury. 
But  beyond  this  juries,  as  a  general  rule,  are  not  allowed  to  in- 
trude, as  by  such  intrusion  all  certainty  and  fixedness  of  legal  rule 

8  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  OG,  97. 
»  I'art  of  the  opinion  is  omitted. 


PROVINCE  OF  COURT  AND  JURY  205 

woi-.ld  be  overthrown  and  destroyed.  In  a  case  like  the  present 
the  rule  for  measuring  the  damages  is  fixed  and  determinate,  and 
should  be  applied  to  all  cases  alike,  except  in  those  cases  where 
there  may  be  malice  or  circumstances  of  aggravation  in  the  wrong 
complained  of,  for  which  the  damages  may  be  enhanced.  Indeed, 
it  is  of  the  utmost  importance  that  juries  should  be  explicitly  in- 
structed as  to  the  rules  by  which  they  are  to  be  governed  in  esti- 
mating damages;  for,  as  it  was  justly  observed  by  the  court  in 
Hadley  v.  Baxendale,  supra,  "if  the  jury  are  left  without  definite 
rule  to  guide  them,  it  will,  in  most  cases,  manifestly  lead  to  the 
greatest  injustice."  In  cases  of  this  character  the  jury  can  only 
give  such  damages  as  were  the  immediate  consequences  naturally 
resulting  from  the  act  complained  of,  with  the  right  to  allow  exem- 
plary damages  for  any  malice,  or  the  use  of  unnecessary  force,  in 
the  commission  of  the  wrong  alleged.  Railroad  Co.  v.  Blocher, 
supra  [27  Md.  277]. 

The  expenses  incurred  by  the  plaintiff,  occasioned  by  the  refusal 
of  the  defendant  to  admit  him  to  the  train,  such  as  the  expense  of 
a  ticket  to  travel  upon  another  train,  and  hotel  expenses  incurred 
by  reason  of  the  delay,  may  be  allowed  for ;  and  mere  inconven- 
ience may  be  ground  for  damage,  if  it  is  such  as  is  capable  of  being 
stated  in  a  tangible  form,  and  assessed  at  a  money  value ;  and  so 
for  any  actual  loss  sustained  in  matters  of  business  that  can  be 
shown  to  have  been  occasioned  as  the  direct  and  necessary  conse- 
quence of  the  wrongful  act  of  the  defendant  made  the  ground  of 
action.  Denton  v.  Railway  Co.,  5  El.  &  Bl.  860;  Hamlin  v.  Rail- 
way Co.,  1  Hurl.  &  N.  408;  Hobbs  v.  Railway  Co.,  L.  R.  10  O.  B. 
Ill;  Wood's  Mayne,  Dam.  398,  399;  2  Greenl.  Ev.  §  254. '^For 
the  error  in  the  second  instruction  of  the  court,  with  respect  to 
the  measure  of  damages,  the  judgment  of  the  court  below  must  be 
reversed,  and  a  new  trial  awarded. 


TATHWELL  v.  CITY  OF  CEDAR  RAPIDS. 

(Supreme  Court  of  Iowa,  1903.     122  lowu,  50.     97  N.  W.  9G.) 

Action  to  recover  damages  resulting  from  personal  injuries  re- 
ceived by  plaintiff  while  driving  in  a  street  of  defendant  city  by 
reason  of  his  horse  stepping  into  a  hole  in  the  highway  in  or  beside 
a  culvert,  the  result  being  that  ])laintiff  was  thrown  to  the  ground. 
Judgment  for  plaintiff  on  a  former  trial  was  reversed,  and  a  new 
trial  ordered.  114  Iowa,  180,  86  N.  W.  291.  On  this  trial  ver- 
dict was  returned  for  the  plaintiff  for  $100  damages,  which,  on 
plaintiff's  motion,  was  set  aside  as  inadequate.  From  this  ruling 
defendant  appeals. 


206  PLEADING    AND   PRACTICE 

McClain,  J.*"  There  was  a  conflict  in  the  evidence  as  to  wheth- 
er the  street  was  defective  at  the  place  where  plaintiff  was  injured, 
but  the  verdict  of  the  jury  for  the  plaintiff  establishes  the  existence 
of  a  defect  and  the  negligence  of  the  city  with  reference  thereto, 
and  we  have  for  consideration  only  this  question :  Did  the  trial 
judge  err  in  setting  aside  the  verdict  on  the  ground  that  the  dam- 
ages awarded  to  plaintiff'  for  the  injury  were  inadequate?  The  right 
of  jury  trial,  as  uniformly  recognized  under  the  common-law  sys- 
tem, involves  the  determination  by  the  jury,  rather  than  by  the 
judge,  of  questions  of  fact,  including  the  amount,  of  damage  to  be 
given  where  compensation  is  for  an  unliquidated  demand.  Nev- 
ertheless, the  trial  courts  have  exercised  from  early  times  in  the 
history  of  the  common  law  the  power  to  supervise  the  action  of  the 
jury,  even  as  to  the  measure  of  damages,  and  to  award  a  new  trial 
where  the  verdict  is  not  supported  by  the  evidence  and  is  mani- 
festly unjust  and  perverse.  And  while  it  is  uniformly  held  that 
the  trial  judge  will  interfere  with  the  verdict  of  the  jury  as  to  mat- 
ters of  fact  with  reluctance,  and  only  where,  on  the  very  face  of 
the  evidence,  allowing  every  presumption  in  favor  of  the  correct- 
ness of  the  jury's  action,  it  is  apparent  to  a  reasonable  mind  that 
the  verdict  is  clearly  contrary  to  the  evidence,  yet  the  power  of 
the  judge  to  interfere  in  extreme  cases  is  unquestionable.  It  has 
sometimes  been  said  that  the  judge  should  not  interfere  where  the 
verdict  is  supported  by  a  scintilla  of  evidence ;  but  the  scintilla 
doctrine  has  been  discarded  in  this  state,  and  is  not  now  generally 
recognized  elsewhere.  Meyer  v.  Houck,  85  Iowa,  319,  52  N.  W. 
235. 

The  general  scope  and  extent  of  the  judge's  supervisory  power 
with  reference  to  the  jury's  verdict  as  to  questions  of  fact  is 
well  illustrated  by  the  very  first  reported  case  in  which  the  power 
appears  to  have  been  exercised — that  of  Wood  v.  Gunston,  decided 
in.  1655  by  the  Court  of  King's  Bench  (or,  as  it  was  called  during 
the  commonwealth,  Upper  Bench),  found  in  Style's  Reports,  on 
page  466.  The  action  was  upon  the  case  for  speaking  scandalous 
words  against  the  plaintiff,  charging  him,  among  other  things, 
with  being  a  traitor.  The  jury  gave  plaintiff  £1,500  damages, 
whereupon  the  defendant  moved  for  a  new  trial  on  the  ground 
that  the  damages  were  excessive,  and  that  the  jury  had  favored  the 
plaintiff.  In  opposition  to  this  it  was  said  in  argument  that,  after 
a  verdict  the  partiality  of  the  jury  ought  not  to  be  questioned,  nor 
was  there  any  precedent  for  it  "in  our  books  of  the  law,"  and  that 
it  would  be  of  dangerous  consequence  if  it  should  be  permitted, 
and  the  greatness  of  the  damages  cannot  be  a  cause  for  a  new  trial. 
But  counsel  for  the  other  party  said  that  the  verdict  was  a  "packed 
business,"  else  there  could  not  have  been  so  great  damages,  and 

10  Part  of  the  opinion  is  omitted. 


PROVINCE    OF   COURT    AND   JURY 


207 


that  the  court  had  power  "in  extraordinary  cases  such  as  this  is  to 
grant  a  new  trial."'  The  chief  justice  thereupon  said:  "It  is  in  the 
discretion  of  the  court  in  some  cases  to  grant  a  new  trial,  but  this 
must  be  a  judicial,  and  not  an  arbitrary,  discretion,  and  it  is  fre- 
quent in  our  books  for  the  court  to  take  notice  of  miscarriages  of 
juries,  and  to  grant  new  trials  upon  them.  And  it  is  for  the  peo- 
ple's benefit  that  it  should  be  so,  for  a  jury  may  sometimes,  by  in-  • 
direct  dealings,  be  moved  to  side  with  one  party,  and  not  to  be  in- 
different betwixt  them,  but  it  cannot  be  so  intended  with  the  court ; 
wherefore  let  there  be  a  new  trial  the  next  term,  and  the  defendant 
shall  pay  full  costs,  and  judgment  to  be  upon  this  verdict  to  stand 
for  security  to  pay  what  shall  be  recovered  upon  the  next  verdict." 
This  case  is  especially  interesting  in  connection  with  the  present 
discussion,  because  it  is  one  in  which  the  assessment  of  damages 
was  peculiarly  within  the  province  of  the  jury,  and  because  the 
nature  of  the  supervisory  power  of  the  trial  judge  is  explained  as 
being,  in  efifect,  to  set  aside  a  verdict  for  excessive  damages  in  such 
cases  which  seem  to  have  been  the  result  of  passion  and  prejudice, 
and  not  the  deliberate  exercise  of  judgment.  That  the  practice 
of  granting  new  trials  under  such  circumstances  has  continued  in 
all  the  courts  administering  the  common  law  from  the  time  of  the 
case  just  cited  to  the  present  time  is  a  matter  of  common  knowl- 
edge with  the  profession,  and  citation  of  authorities  would  be  super- 
fluous. That  the  power  is  exercised  to  prevent  miscarriage  of  jus- 
tice by  reason  of  the  rendition  of  a  verdict  by  the  jury  which  is 
wholly  unreasonable,  in  view  of  the  testimony,  which  is  given  in 
the  presence  of  the  court,  is  universally  conceded. 

But  the  question  with  which  we  are  now  more  particularly  con- 
cerned is  whether  this  power  of  the  trial  judge  may  be  exercised 
where  the  injustice  consists  in  rendering  a  verdict  for  too  small  an 
amount.  If  the  case  is  one  in  which  the  measure  of  damages  is  a 
question  of  law,  the  court  has,  of  course,  the  same  power  to  set 
aside  a  verdict  for  too  small  an  amount  as  one  which  is  excessive; 
and  this  is,  in  general,  true  without  question  where  the  damages 
are  capable  of  exact  computation — that  is,  where  the  facts  estab- 
lished by  the  verdict  of  the  jury  show  as  matter  of  law  how  much 
the  recovery  should  be.  In  such  cases  the  court  may  grant  a  new 
trial,  unless  the  defendant  will  consent  to  a  verdict  for  a  larger 
amount,  fixed  by  the  court,  than  that  found  by  the  jury;  just  as 
in  case  of  excessive  damages  under  similar  circumstances  the  court 
may  reduce  the  amount  for  which  the  verdict  shall  be  allowed  to 
stand,  on  penalty  of  setting  it  aside  if  the  successful  party  does 
not  agree  to'  the  reduction.  Carr  v.  Miner,  42  111.  179;  James  v. 
Morcv,  44  111.  352.  It  seems  to  have  been  thought  by  some  courts 
that  the  general  supervisory  power  over  verdicts,  where  the  amount 
of  damage  is  not  capable  of  computation,  and  rests  in  the  sound 
discretion  of  llic  jury,  should  nut  be  exercised  where  the  verdict 


■208  PLEADING    AND   PRACTICE 

is  for  too  small  an  amount;  at  least  not  with  the  same  freedom  as 
in  cases  where  it  is  excessive.  Barker  v.  Dixie,  2  Strange,  1051; 
Pritchard  v.  Hewitt,  91  Mo.  547,  4  S.  W.  437,  60  Am.  Rep.  265 ; 
Martin  v.  Atkinson,  7  Ga.  228,  50  Am.  Dec.  403.  No  such  limita- 
tion on  the  supervisory  power  of  the  trial  judge  has  been  definitely 
established,  and  by  the  great  weight  of  authority,  both  in  England 
and  America,  the  power  to  set  aside  the  verdict,  when  manifestly 
inconsistent  with  the  evidence,  and  the  result  of  a  misconception 
by  the  jury  of  their  powers  and  duties,  is  as  fully  recognized  where 
the  verdict  is  inadequate  as  where  it  is  excessive;  and  ample  il- 
lustration of  the  exercise  of  this  power  is  found  in  actions  to  re- 
cover damages  for  personal  injuries  or  injury  to  the  reputation, 
although  in  such  cases  the  amount  of  damage  is  peculiarly  within 
the  jury's  discretion.  Phillips  v.  London  &  S.  W.  R.  Co.,  5  Q.  B. 
D.  781;  Robinson  v.  Town  of  Waupaca,  77  Wis.  544,  66  N.  W. 
809;  Whitney  v.  Llilwaukee,  65  Wis.  409,  27  N.  W.  39;  Caldwell 
V.  Vicksburg,  S.  &  P.  R.  Co.,  41  La.  Ann.  624,  6  South.  217;  Benton 
v.  Collins,  125  N.  C.  83,  34  S.  E.  242,  47  L.  R.  A.  33 ;  McNeil  v. 
Lyons,  20  R.  L  672,  40  Atl.  831 ;  Lee  v.  Publishers,  George  Knapp 
&  Co.,  137  Mo.  385,  38  S.  W.  1107;  McDonald  v.  Walter,  40  N.  Y. 
551 ;   Carter  v.  Wells,  Fargo  &  Co.  (C.  C.)  64  Fed.  1007. 

Counsel  for  appellant  urge,  however,  that  the  whole  matter  of 
granting  new  trials  is  controlled  by  the  provisions  relating  to  that 
subject  found  in  the  Code,  and  that  these  provisions  supersede  the 
common-law  rules  on  the  subject.  It  has  not  been  our  understand- 
ing that  the  provisions  of  the  Code  relating  to  practice  are  intended 
to  entirely  supersede  the  rules  of  the  common  law.  They  are,  like 
other  statutory  law,  merely  additions  to  or  modifications  of  com- 
mon-law rules.  We  have  held,  for  instance,  that,  without  any 
statutory  provision  on  the  subject,  the  court  may  direct  a  verdict 
in  a  proper  case ;  that  new  trials  may  be  granted  in  equity  after 
the  expiration  of  one  year  from  the  time  of  rendering  judgment, 
although  the  statutory  provisions  as  to  new  trials  after  judgment 
limit  the  right  to  one  year;  that  the  Supreme  Court  may  grant  a 
restraining  order,  in  the  exercise  of  its  general  appellate  jurisdic- 
tion, although  there  is  no  statutory  provision  whatever  with  ref- 
erence thereto.  These  illustrations  indicate  that  the  provisions  of 
the  Code  as  to  practice  supersede  common-law  rules  only  so  far  as 
they  are  inconsistent  therewith.  The  Legislature  has  never  at- 
tempted a  complete  codification  of  the  rules  and  principles  of  the 
common  law,  either  as  to  substantive  or  remedial  rights.     *     *     * 

However  this  may  be,  we  think  the  authority  is  expressly  given 
in  Code,  §  3755,  to  set  aside  a  verdict  which  is  manifestly  inade- 
quate under  the  evidence.     *     *     * 

Similar  provisions  in  other  Codes  have  been  construed  as  au- 
thorizing the  setting  aside  of  verdicts  on  plaintiff's  motion  be- 
•cause  the  damages  allowed  are  inadequate.     Du  Brutz  v.  Jessup, 


PROVINCE    OF   COURT   AND   JURY  209 

54  Cal.  US;  Bennett  v.  Hobro,  72  Cal.  178,  13  Pac.  473;  Emmons 
V.  Sheldon,  26  Wis.  648;  Henderson  v.  St.  Paul  &  D.  R.  Co.,  52 
Minn.   479,   55   N.  W.  53;    McDonald  v.  Walter,  40  N.  Y.  551. 

*       :;=       * 

The  trial  judge  therefore  had  the  power  to  set  aside  the  verdict 
below  on  account  of  the  inadequacy  of  the  damages,  and  the  ques- 
tion is  whether  the  case  is  a  proper  one  for  the  exercise  of  such 
power.  We  interfere  reluctantly  with  the  action  of  the  lower 
court  in  ruling  on  motions  for  a  new  trial,  and  especially  where  a 
new  trial  has  been  granted.  Peebles  v.  Peebles,  77  Iowa,  11,  41 
N.  W.  387;  Morgan  v.  Wagner,  79  Iowa,  174,  44  N.  W.  345;  Hop- 
kins V.  Knapp  &  Spaulding  Co.,  92  Iowa,  212,  60  N.  W..620;  ^lally 
V.  Mally,  114  Iowa,  309,  86  N.  W.  262;  Chouquette  v.  Southern 
Electric  R.  Co.,  152  Mo.  257,  53  S.  W.  897.  Although  it  is  urged 
in  this  case  that  the  jury  allowed  to  the  plaintiff  the  actual  dam- 
ages sustained  by  him  so-  far  as  they  are  shown  by  any  evidence 
corroborating  his  own  testimony,  nevertheless  it  clearly  appears 
that,  if  his  unimpeached  testimony  is  to  be  credited,  he  was  dam- 
aged to  a  much  larger  extent  than  is  covered  by  the  verdict  ren- 
dered by  the  jury.  We  do  not  hold  that  the  trial  judge  may  sub- 
stitute his  judgment  of  the  credibility  of  the  witness  in  place  of 
the  judgment  which  the  jury  has  exercised,  but  we  do  say  that  the 
trial  judge  may,  if  he  finds  that  the  jury  have  failed  to  allow  the 
amount  of  damages  shown -by  uncontradicted  testimony,  set  aside 
the  verdict  as  in  conflict  with  the  evidence  and  award  a  new  trial. 
The  ruling  of  the  lower  court  was  therefore  correct,  and  it  is  af- 
firmed.^^ 

11  Setting  aside  verdict  which  is  excessive,  see  Wright  v.  Beardsley,  ante, 
p.  112,  aud    Prince  v.  State  Mutual  Life  Ins.  Co.,  ante,  p.  187. 

CooLET  Dam. — 14 


210  BEEACH    0¥   COM  TRACTS   FOR   SALE   OF   GOODS 

BREACH  OF  CONTRACTS  FOR  SALE  OF  GOODS 
I.  Action  by  Seller — Damages  for  Nonacceptance  * 


TODD  V.  GAMBLE. 

(Court  of  Appeals  of  New  York,  1S96.      148  N.  Y.  3S2,  42  N.  E.  982, 
52  L.  R.  A.  225.) 

Action  by  Albert  U.  Todd  and  others  against  James  Gamble  and 
others.  From  a  judgment  of  the  general  term  (74  Hun,  569,  26 
N.  Y.  Supp.  662)  affirming  a  judgment  for  plaintiffs,  defendants 
appeal. 

Gray,  J.  ^  This  appeal  presents  the  question  of  the  proper  meas- 
ure of  damages  in  an  action  against  the  defendants  for  refusing  to 
perform  their  contract  with  the  plaintiffs.  By  that  contract  the 
plaintiffs,  who  were  manufacturers  of  chemicals,  were  to  furnish 
the  defendants  with  "whatever  quantities  of  silicate  of  soda  they 
will  require  to  use  in  their  factories  during  one  year  frohi  date" 
at  the  price  of  $1.10  per  100  pounds,  in  New  York.  Under  this 
agreement  the  plaintiffs  had  delivered,  and  the  defendants  had  paid 
for,  350  barrels  of  the  article,  when  the  latter  notified  the  former 
that  they  would  not  receive  any  more.  The  refusal  on  the  part 
of  the  defendants  to  perform  their  contract  seems  to  have  been 
purely  arbitrary.  Upon  receiving  this  notice  from  the  defendants, 
the  plaintiffs  ceased  to  manufacture  under  the  contract.  *  *  * 
It  was  conceded  that  for  the  balance  of  the  contract  year  the  de- 
fendants used  about  2,877  barrels  of  silicate  of  soda  (each  barrel 
containing  about  550  pounds),  which  they  purchased  from  other 
parties;  and  under  instructions  from  the  court  that  the  plaintiffs, 
if  there  was  no  market  value  for  the  article,  were  entitled  to  re- 
cover the  difference  between  the  cost  of  production  and  the  con- 
tract price,  the  jury  rendered  a  verdict  for  the  plaintiffs  against 
the  defendants  for  their  failure  to  take  that  amount,  for  damages 
measured  by  that  rule.  They  also,  upon  the  request  of  the  court, 
made  a  special  finding  that  at  the  time  of  the  breach  by  the  de- 
fendants of  their  contract  there  was  no  market  value  for  silicate 
of  soda. 

The  general  rule  for  the  measure  of  damages  in  the  case  of  a 
breach  by  a  vendee  in  the  contract  for  the  sale  of  an  article  of  mer- 
chandise at  a   fixed   price   is  the   difference  between  the  contract 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  98-100. 

2  Part  of  tbe  opinion  is  omitted. 


ACTION    BY   SELLER — DAMAGES   FOR    NONACCEPTANCE  211 

price  and  the  market  value  of  the  article  on  the  day  and  at  the 
place  of  delivery.  Gregory  v.  AIcDowel,  8  Wend.  435 ;  Dey  v. 
Dox,  9  Wend.  129,  24  Am.  Dec.  137;  Windmuller  v.  Pope,  107  N. 
Y.  674,  14  N.  E.  436;  Wood's  Mayne,  Dam.  §  200.  That  is  the 
rule  which  has  been  recognized  both  in  England  and  here.  The 
principle  upon  which  it  rests  is  that  of  an  indemnification  of  the 
injured  party  for  the  injury  which  he  has  sustained,  and,  in  ordi- 
nary cases,  the  value  in  the  market  on  the  day  forms  the  readiest 
and  most  direct  method  of-ascertaining  the  measure  of  this  indem- 
nity. If  the  article  is  bought  and  sold  in  the  market,  the  market 
price  shows  what  pecuniary  sum  it  would  take  to  put  the  plaintiff 
in  as  good  a  position  as  if  the  contract  had  been  performed. 
*  *  *  To  justify  a  departure  from  this  general  rule,  the  facts  must 
take  the  case  out  of  the  ordinary,  and,  if  there  is  no  such  standard  as 
a  market  value,  the  measure  of  the  plaintifif's  damage  may  be  ar- 
rived at,  in  a  case  like  the  present  one,  by  ascertaining  the  differ- 
ence between  the  contract  price  and  the  cost  of  production  and 
delivery.  Market  value,  in  the  ordinary  sense,  is  generally,  but 
not  always,  the  measure  of  damages,  and  the  application  of  the 
rule  necessarily  must  be  to  a  case  where  it  is  shown  that  there  is  a 
market  value  for  the  subject  of  the  contract  of  sale.     *     *     * 

The  defendants  proceed  upon  the  assumption  that  if  an  article 
is  shown  to  have  a  value,  or  selling  price,  the  measure  of  damages 
must  be  the  difference  between  it  and  the  contract  price,  irre- 
spective of  the  question  of  the  nature  of  the  market  for  it.  To 
use  their  language:  "If  there  be  no  market,  in  a  restricted  sense, 
yet,  if  the  commodity  is  the  subject  of  sale,  and  there  is  a  selling 
price,  the  same  rule  obtains,  and  proof  of  cost  should  be  excluded.'' 
Proceeding  upon  that  assumption,  they  argue,  substantially,  that 
as  there  was  shown  to  be  a  selling  price,  from  the  fact  of  there  hav- 
ing been  sales  of  the  article  by  the  plaintiffs,  it  is  a  controlling 
factor,  and  compels  the  application  of  the  general  rule  for  which 
they  contend.  To  that  proposition  I  think  we  should  not  assent, 
and  I  fail  to  find  adequate  support  for  it  either  in  principle  or  in 
the  authorities.  The  general  rule  certainly  can  have  no  applica- 
tion to  the  case  of  a  breach  of  a  contract  for  the  manufacture  and 
sale  of  a  commodity,  unless  it  is  made  to  appear  that  upon  the 
breach  by  the  vendee  the  vendor  could  have  placed  the  commodity 
upon  the  market,  and,  by  thus  disposing  of  it,  have  relieved  him- 
self from  the  consequences  of  the  defendants'  default.  The  prin- 
ciple of  indemnity  upon  which  the  rule  rests  would  be  satisfied  in 
such  a  case,  and  the  vendor  would  be  confined  for  his  recovery  to 
the  difference  between  a  known  market  value  at  the  time  of  the 
breach  of  the  contract  and  the  price  fixed  by  the  contract.  In 
Iladlcy  V.  Baxcndalc,  9  Exch.  341,  this  rule  was  laid  down  by  P.aron 
Alderson:    "Where  two  parties  have  made  a  contract,  which  one 


212  BREACH    OF    CONTRACTS   FOR    SALE    OF    GOODS 

of  them  has  broken,  the  damages  which  the  other  party  ought  to 
receive,  in  respect  of  such  breach  of  contract,  should  be  such  as 
may  fairly  and  reasonably  be  considered  either  arising  naturally — 
i.  e.  according  to  the  usual  course  of  things — from  such  breach  of 
contract  itself,  or  such  as  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties  at  the  time  they  made  the  :on- 
tract,  as  the  probable  result  of  the  breach  of  it." 

What  must  the  parties  be  deemed  to  have  contemplated  n  the 
present  case?  The  defendants  bound  the  plaintiffs,  througd  this 
contract,  to  supply  all  the  silicate  of  soda  which  they  would  require  ' 
for  the  year.  The  plaintiffs,  with  ample  capacity  for  supplying  the 
article,  contemplated  that  their  production  would  be  increased  by 
the  amount  which  the  defendants  would  take  from  them  during 
the  year.  The  defendants  agreed  to  take  the  article  only  from  the 
plaintiffs,  and  were  accorded  a  concession  upon  the  price  at  v^diich 
the  plaintiffs  were  then  selling  their  product.  The  plaintiff's  were 
assured  of  sales  which,  with  their  facilities  for  manufacturing, 
would  represent  to  them  a  profit  measured  by  the  difference  be- 
tween the  cost  of  its  production  and  the  price  which  they  had  fixed 
in  the  contract.'  The  defendants  well  knew,  from  the  perishable 
nature  of  the  article  and  its  limited  demand,  that  the  plaintiffs 
would  manufacture  to  meet  their  requirements  in  their  business 
and  that  such  an  article  would  not  be  manufactured  in  such  large 
quantities  as  would  be  needed  by  them,  unless  it  could  be  dis- 
posed of  at  once.  Of  course,  they  must  have  contemplated  a 
profit  to  the  plaintiffs  if  they  could  manufacture  at  a  cost  under 
the  contract  price.  It  is  absurd  to  say,  in  view  of  the  evidence, 
that  there  was  a  market  value,  in  the  ordinary  sense  of  the  term, 
for  silicate  of  soda,  and,  perhaps,  the  defendants  do  not  seriously 
argue  that  there  was.  But  if  we  are  to  hold,  in  accordance  with 
their  views,  because  there  was  a  price  at  which  the  plaintiffs  had 
been  able  to  eft'ect  sales  of  the  article  at  the  time  of  the  breach,  that 
that  fact  must  be  controlling  in  fixing  the  measure  of  damages,  we 
should  be  doing  a  great  injustice,  and  we  should  be  establishing  a 
commercial  rule,  which  would  work  injuriously  in  cases  where, 
like  the  present  one,  the  subject  of  sale  between  the  parties  is  an 
article  perishable  in  its  nature,  when  kept  for  any  length  of  time, 
having  but  a  limited  demand,  and  no  real  market,  and  only  manu- 
factured in  any  quantities  upon  orders  by  consumers.     *     *     * 

We  have  ample  authority  for  saying  that,  as  silicate  of  soda  was 
an  article  which  had  no  market  value,  in  the  ordinary  sense,  but 
was  usually  manufactured  upon  orders  given  by  consumers,  the 
manufacturer,  whose  contract  to  furnish  it  is  broken  by  the  re- 
fusal of  the  vendee  to  take  it,  is  entitled  to  recover  as  his  dam- 
ages the  profits  which  the  performance  of  the  contract  by  the  ven- 
dee would  have  produced  to  him,  or  the  dift'erence  between  what 


ACTION    BY    BUYER — DAMAGES   FOR    NONDELIVERY 


213 


it  would  have  cost  him  to  manufacture  and  deliver  it  under  the 
contract  and  the  price  agreed  to  be  paid  therein  by  the  vendee. 
*     Judgment  affirmed. 


* 


II.  Action  by  Buyer— Damages  for  Nondelivery* 


RIGHTER  V.  CLARK. 

(Supreme  Court  of  Errors  of  Connecticut.  1905.    7S  Conn.  9,  60  Atl.  741, 
112  Am.  St.  Rep.  84.) 

Action  by  Walter  L.  Righter  and  Wilbur  A.  Marshall  against 
George  B.  Clark.  From  an  order  setting  aside  the  verdict  in  fa- 
vor o1  defendant  for  $439.20  on  a  counterclaim,  defendant  appeals. 

Baldwin,  J.*  The  plaintiffs,  wholesale  coal  dealers  in  New  York 
City,  sued  the  defendant,  a  coal  dealer  in  Derby,  for  a  balance  of 
$500  due  for  coal  sold  to  him.  His  answer,  admitting  the  indebt- 
edness, set  up  by  way  of  counterclaim  that  they  owed  him  $1,000 
as  damages  for  breach  of  a  contract  made  with  him  in  New  York 
City  on  February  6,  1903,  to  sell  and  deliver  to  him  at  Derby  a 
cargo  of  coal  then  laden  on  the  barge  President,  in  New  York 
Harbor.  The  damages  which  he  alleged  that  he  had  suffered  were 
the  loss  of  profits  that  he  would  have  made  by  retailing  the  coal 
to  customers  in  Derby  who  needed  and  would  have  bought  it,  as 
the  plaintiffs  well  knew,  and  of  the  trade  of  a  large  number  of 
customers,  and  of  freight  paid,  at  a  higher  rate  than  that  agreed 
on  with  the  plaintiff's,  on  coal  which  he  was  obliged  to  purchase 
from  others,  and  a  depreciation  in  value  of  such  coal  before  he 
could  sell  it.  It  was  admitted  by  the  pleadings  that  the  cargo  in 
question,  consisting  of  499  tons,  was  so  sold  to  him  at  $5.25  a  ton, 
free  on  board,  at  New  York,  and  that  the  defendant  was  to  pay  90 
cents  a  ton  for  its  transportation  on  the  barge  to  Derby.  The 
plaintiffs  denied  that  they  were  to  deliver  it  in  Derby,  claiming  that 
it  was  to  be  taken  there  by  the  defendant,  he  arranging  for  the 
transportation  with  the  master  of  the  barge,  and  paying  the  freight 
to  him  ;  and  as  to  this  the  evidence  was  sufficient  to  justify  the 
jury  in  finding  the  issue  for  the  defendant.  They  could  therefore 
award  him  such  damages  as  naturally  followed  from  the  plaintiffs' 
failure  to  deliver  the  coal  at  Derby  as  agreed;  that  is,  within  a 
reasonable  time  after  February  6th.  Their  ordinary  measure  would 
be  the  excess,  if  any,  of  the  market  price  of  such  coal  at  Derby  at 

8  For  discussion  of  principles,  see  Hale  on  Damages  (lid  Ed.)  §§  102,  103. 
*  I'art  of  the  opinion  is  omitted. 


214  BREACH    OF   CONTRACTS   FOR    SALE    OF   GOODS 

the  date  when  the  cargo  should  have  been  delivered,  and  the  price 
agreed  on  between  the  parties.  Jordan,  Marsh  &  Co.  v.  Patterson, 
67  Conn.  473,  480,  35  Atl.  521.  This  market  price  would  be  the 
wholesale  price.  It  was  not  claimed  that  there  was  any  wholesale 
market  price  for  coal  at  Derb3^  The  value  of  coal  at  Derby  would 
therefore  be  determined  by  its  wholesale  market  price  at  the  time 
at  the  nearest  convenient  wholesale  market,  and  the  cost  of  trans- 
portation from  there  to  Derby,  Grand  Tower  Co.  v.  Phillips,  23 
Wall.  471,  480,  23  L.  Ed.  71.  A  near  and  convenient  wholesale 
market  was  to  be  found  in  New  York  City. 

The  evidence  showed  beyond  reasonable  question  that  coal  of 
the  kind  in  question,  which  had  previously  been  scarce  there,  on 
account  of  the  great  strike  in  Pennsylvania,  became  plenty  early 
in  February,  and  that  the  wholesale  market  price  did  not  rise  after 
February  6th  during  the  remainder  of  that  month  and  the  month 
following.  It  showed,  also,  *  *  *  that  the  freight  on  coal 
by  the  car  load  from  Bridgeport  to  Derby  in  February  was  80 
cents  a  ton.  The  defendant  could  therefore  have  bought  other  and 
equally  good  coal,  at  and  for  a  considerable  time  after  the  breach 
of  contract  by  the  plaintiffs,  at  the  same  price  which  he  agreed  to 
pay  to  them,  except  for  such  increase  as  there  might  be  in  the 
freight  charges  between  New  York  and  Derby.  It  appeared  that 
he  bought  a  cargo  from  them  on  February  13th,  for  transporting 
which  to  Derby  by  way  of  the  Housatonic  river  he  paid  $1  a  ton. 
This  did  not  reach  Derby  until  March,  but,  had  it  been  shipped 
to  Bridgeport,  and  thence  to  Derby  by  rail,  the  freight  would  not 
have  exceeded  $1.80  a  ton.  If  he  could  properly  have  taken  the 
latter  course,  his  damages  from  the  breach  of  contract  would  be 
90  cents  a  ton,  or  less  than  $450.  The  verdict,  in  effect,  gave  him 
$939.20.  That  the  plaintiffs  knew  when  they  sold  him  the  cargo, 
that  he  bought  for  the  purpose' of  selling  it  at  retail  did  not  entail 
any  obligation  to  answer  for  profits  which  he  might  have  made, 
had  he  been  able  so  to  sell  it.  The  coal  could  easily  have  been  re- 
placed by  purchases  from  others,  with  the  same  opportunity  for 
profit  on  resales. 

No  proof  was  offered  of  the  alleged  loss  of  customers,  nor  of  a 
shrinkage  in  value  of  coal  bought  from  others  to  replace  that  sold 
by  the  plaintiffs;  and,  had  there  been,  it  would  have  been  inad- 
missible. Such  consequences  were  not  of  a  kind  to  be  reasonably 
anticipated  from  the  breach  of  the  plaintiffs'  contract.     *     *     * 

It  is  further  contended  that,  if  the  verdict  was  excessive,  it  should 
have  been  set  aside  only  in  case  the  plaintiff  declined  to  remit  a 
portion  of  the  damages.  There  is  nothing  in  the  evidence  that 
could  justify  the  jury  in  finding  damages  in  excess  of  the  $500 
which  was  conceded  to  be  due  to  the  plaintiffs.  The  verdict  should 
have  been  in  their  favor.     There  is  no  error. 


ACTION  BY  BUYER — DAMAGES  FOR  BREACH  OF  WARRANTY    215 


III.  Same — Damages  for  Breach  of  Warranty 


PARK  V.  RICHARDSON-BOYNTON  FURNACE  CO. 
(Supreme  Court  of  Wisconsin,  1S95.    91  Wis.  189,  64  N.  W.  859.) 

Action  by  B.  B.  Park  and  others  against  the  Richardson-Boynton 
Furnace  Company.  The  plaintiffs  bought  of  the  defendant  a  fur- 
nace for  heating  their  building.  The  furnace  was  warranted  to 
work  satisfactorily.  It  did  not  work  satisfactorily.  The  plaintiffs 
brought  this  action  to  recover  damages  for  the  breach  of  the  war- 
ranty. There  was  a  jury  trial,  resulting  in  verdict  and  judgment 
for  the  plaintiffs,  from  which  the  defendant  appeals.  Error  is  al- 
leged in  the  charge  of  the  court  as  to  the  measure  of  damages.  The 
court  instructed  the  jury  that,  in  case  the}^  found  for  the  plaintiffs, 
"the  plaintiffs  will  be  entitled  to  recover  the  difference  between 
the  purchase  price  of  the  furnace     *     *     *     and  its  actual  value." 

Newman,  J.  When  this  case  was  here  before  (81  Wis.  399,  51 
N.  W.  572),  it  was  said  that  the  proper  rule  of  damages  for  breach 
of  the  warranty  of  the  furnace  would  be  "the  dift'erence  between 
its  actual  value  and  its  value  had  it  conformed  with  the  warranty." 
This  is  undoubtedly  the  true  rule.  Suth.  Dam.  (2d  Ed.)  §  670 : 
Morse  v.  Hutchins,  102  ]\Iass.  440.  The  rule  stated  by  the  trial 
court  is  not  the  equivalent  of  the  true  rule.  The  rule  of  the  trial 
court  deprives  the  purchaser  of  the  profit  of  his  bargain,  if  he  has 
made  a  good  one,  and  gives  him  an  undue  advantage,  if  he  has  made 
a  bad  one.  The  furnace  may  have  been  either  cheap  or  dear,  at  the 
price  paid,  even  if  it  had  conformed  to  the  warranty.  If  it  was  a 
bad  bargain,  aside  from  the  defects  complained  of,  the  plaintiffs' 
damages  are  less  than  if  it  had  been  a  good  bargain.  This  consid- 
eration is  an  element  in  the  rule  of  damages.  The  question  of  the 
value  of  the  furnace,  if  it  had  conformed  to  the  warranty,  should 
have  been  left  to  the  jury,  as  well  as  the  question  of  its  actual  value. 
The  defendant  may  have  suffered  by  the  error.  The  judgment  of 
the  circuit  court  is  reversed,  and  the  cause  remanded  for  a  new 
trial. 

5  For  di.scussion  of  prinpi[)les,  see  Hale  on  Damages  (2d  Ed.)  §  105. 


216  DAMAGES   IN  ACTIONS  AGAINST  CARRIERS 

DAMAGES  IN  ACTIONS  AGAINST  CARRIERS 
I.  Carriers  of  Goods — Damages  for  Loss  or  Nondelivery* 


BLACKMER  V.  CLEVELAND,  C,  C.  &  ST.  L.  RY.  CO. 

(Court  of  Appeals  of  Missouri,  1903.     101  Mo.  App.  557,  73  S.  W.  913.) 

Action  by  C.  E.  Blackmer  and  others  against  the  Cleveland,  Cin- 
cinnati, Chicago  &  St.  Louis  Railway  Company.  From  a  judgment 
in  favor  of  plaintiffs,  defendant  appeals. 

Goode;,  J.^  The  petition  in  this  case  is  in  six  counts,  each  of 
which  charges  the  defendant  with  converting  to  its  own  use  cer- 
tain car  loads  of  coal  which  belonged  to  the  plaintiffs,  and  had  been 
put  aboard  cars  on  defendant's  tracks  at  Hillsboro,  111.,  by  the 
Hillsboro  Coal  Company,  consigned  and  to  be  carried  by  the  de- 
fendant to  the  plaintiff's.     *     *     * 

On  December  18,  1901,  the  defendant  notified  the  Hillsboro  Coal 
Company  that  none  of  defendant's  own  cars  set  out  on  the  side 
track  at  Hillsboro  should  be  loaded  with  coal  for  any  other  cus- 
tomer than  the  defendant  itself.  This  notification,  as  well  as  the 
appropriation  of  plaintiff's'  coal,  was  induced  by  the  urgent  need 
of  the  railroad  company  for  coal  to  operate  its  trains  at  that  time, 
as  there  was  a  car  famine  so  that  coal  could  not  readily  be  obtained 
from  the  different  mines  on  defendant's  lines  and  elsewhere.  Pri- 
or to  said  notification  the  defendant  had  permitted  its  own  cars 
to  be  loaded  with  coal  to  be  carried  to  any  consignee,  and  when 
the  notification  was  given  the  Hillsboro  Coal  Company  did  not 
assent  to  the  requirement  that  all  coal  loaded  on  the  cars  should. 
be  for  the  use  of  the  railroad  company;  in  fact,  did  not  make  any 
response  to  the  notice.  The  Hillsboro  Coal  Company  could  not 
have  agreed  to  the  proposition  of  the  railroad  company,  because  it 
was  under  a  contract  with  the  plaintiffs  to  furnish  them  constantly 
a  certain  proportion  of  the  output  of  its  n^ines,  while  plaintiffs  were 
under  contracts,  as  stated,  with  various  consumers  in  the  city  of 
St.  Louis,  to  furnish  them  so  much  coal  daily  to  run  their  facto- 
ries, and  relied  on  getting  their  supply  from  Hillsboro.  Coal  cars 
were  set  out  on  its  side  tracks  at  Hillsboro  by  the  defendant  on 
the  18th,  19th,  and  20th  of  December,  and  were  loaded  as  usual 
by  the  Hillsboro  Company  for  plaintiff's,  and  the  agent  of  the  de- 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2cl  Ed.)  §  lOS. 

2  Part  of  the  opinion  is  omitted. 


CARRIERS  OF  GOODS— DAMAGES  FOR  LOSS  OR  NONDELIVERY        217 

fendant  company  instructed  by  telephone,  as  had  been  the  custom, 
to  bill  the  coal  to  the  plaintiffs  at  East  St.  Louis.  Instead  of  doing 
so  he  marked  on  the  bill  of  lading  that  the  coal  was  for  the  com- 
pany's use.  The  Hillsboro  people  were  powerless  to  prevent  this 
action,  although  their  employe  who  attended  to  the  matter  testified 
positively  that  he  never  consented  for  the  coal  to  be  taken  by  the 
railroad  company.     *     *     * 

We  do  not  accede  to  the  contention  that  the  measure  of  damages 
was  the  value  of  the  coal  at  Hillsboro,  instead  of  at  East  St.  Louis. 
Some  cases  so  hold,  but  the  law  in  this  state,  and  we  think  in  most 
jurisdictions,  is  that  the  true  measure  of  damages  in  cases  like  this 
is  the  value  of  the  goods  at  their  destination.  Farwell  v.  Price, 
30  Mo.  587 ;  Rice  v.  Railroad,  3  ^^lo.  App.  27.  It  is  palpable  that 
plaintififs'  loss  was  what  they  could  have  sold  the  coal  for  at  St. 
Louis,  less  the  cost  of  transportation,  if  they  had  to  pay  that  ex- 
pense. Their  damages,  therefore,  could  not  be  measured  by  the 
value  of  the  coal  at  Hillsboro  without  doing  them  an  injustice. 

We  think,  too,  this  was  a  case  for  punitive  damages.  The  de- 
fendant's urgency  may  have  been  great,  but  so  was  the  plaintiffs'. 
If  the  defendant  had  to  have  coal  to  run  its  trains,  plaintiffs  like- 
wise had  to  have  coal  to  supply  their  customers  in  fulfillment  of 
plaintiff's'  contracts,  and  so  that  the  customers  could  run  their  fac- 
tories ;  and  an  emergency  such  as  the  defendant  may  have  found 
itself  in  affords  no  excuse  for  appropriating  the  property  of  an- 
other. The  evidence  does  not  show  that  the  defendant  was  bound 
to  use  this  coal  or  stop  running  its  trains;  and  if  that  was  shown 
it  would  be  no  justification  for  forcing  plaintiffs  and  others  into 
a  like  dire  strait,  though  it  might  excuse  the  defendant  from  puni- 
tive damages.  We  see  no  good  reason  why,  in  an  action  for  the 
conversion  of  property  accompanied  by  circumstances  of  lawless- 
ness and  oppression,  punitive  damages  should  not  be  awarded  as 
much  as  for  wanton  trespass  to  property,  and  it  has  been  ruled  that 
exemplary  damages  may  be  given  in  such  cases.  Carson  v.  Smith, 
133  Mo.  606,  34  S.  W.  855 ;  Reamer  v.  Express  Co.,  93  Mo.  App. 
501,  67  S.  W.  718;  Downing  v.  Outerbridge,  25  C.  C.  A.  244,  79 
Fed.  931. 

Defendant  makes  the  point  that  the  instruction  in  regard  to  the 
measure  of  damages  is  erroneous,  in  that  it  does  not  direct  a  de- 
duction from  the  value  of  the  coal  at  East  St.  Louis  of  the  cost 
of  the  transportation  to  that  point;  that  is,  of  the  freight  charges. 
The  measure  of  damages  for  the  conversion  of  property  by  a  car- 
rier during  shijjment  is  its  value  at  destination,  less  the  cost  of 
transportation,  if  the  consignee  or  owner  has  to  pay  said  cost. 
But  the  uncontradicted  testimony  of  the  manager  of  the  Hillsboro 
Cool  Company  is  that  once  a  month  the  latter  company  paid  the 
freight  on  all  coal  shipped  to  the  plaintiffs,  doubtless  pursuant  to 


218  DAMAGES   IN  ACTIONS   AGAINST   CARRIERS 

some  arrangement  between  plaintiffs  and  it.  If  plaintiffs  bought 
the  coal  to  be  shipped  at  the  expense  of  the  coal  company,  their 
recovery  ought  not  to  be  reduced  by  the  freight  charges.  The 
judgment  is  affirmed. 


II.  Same — Damages  for  Delay 


DAVIDSON  DEVELOPMENT  CO.  v.  SOUTHERN  RY.  CO. 

(Supreme  Court  of  North  Carolina,  1908.     147  N.  C.  503,  61  S.  E.  381.) 

Action  by  the  Davidson  Development  Company  against  the  South- 
ern Railway  Company.  By  testimony  offered  on  the  part  of  plain- 
tiff and  admissions  of  defendant  company  it  was  made  to  appear 
that  in  compliance  with  "an  order  from  plaintiff,  John  T.  Watson, 
on  June  28,  1906,  delivered  to  the  defendant  at  Danville,  Va.,  two 
car  loads  of  brick,  taking  therefor  a  bill  of  lading,  to  his  order  "no- 
tify W.  H.  Phillips,  Lexington,  N.  C,"  who  was  secretary  and 
treasurer  of  plaintiff  company.  Said  Watson  drew  a  draft  for 
$110.25,  the  price  of  the  brick,  on  the  plaintiff  company,  and  at- 
tached thereto  the  bill  of  lading,  and  forwarded  the  same  through 
the  banks  to  Lexington.  On  June  29th  or  30th  W.  H.  Phillips,  as 
secretary  and  treasurer  of  the  plaintiff'  company,  paid  the  draft  and 
received  the  bill  of  lading.  On  June  29th,  and  while  the  cars  were 
still  in  the  yard  of  the  defendant  at  Danville,  Va.,  Watson  re- 
quested the  defendant  to  divert  the  cars  to  another  customer  of 
his.  In  pursuance  of  this  request  the  defendant  diverted  the  ship- 
ment, taking  from  said  Watson  a  bond  to  indemnify  defendant  for 
any  loss  or  damage  by  reason  of  said  diversion,  and  in  consequence 
thereof  the  plaintiff  did  not  receive  them,  and  it  was  three  weeks 
later  before  the  brick  could  be  replaced.  The  plaintiff*  was  con- 
structing at  Lexington  a  three-story  brick  building,  and  the  brick 
were  ordered  to  be  used  in  that  building.  The  plaintiff"  was  unable 
to  get  the  desired  kind  of  brick  elsewhere,  and  was  delayed  in  the 
completion  of  its  building  for  three  weeks,  this  being  the  wrong 
complained  of.  Prior  to  the  time  in  question  the  plaintiff  had  the 
building  rented  to  responsible  persons  to  the  amount  or  sum  of 
over  $250  per  month,  said  rent  to  begin  upon  completion  of  the 
building.  At  the  time  of  the  delay  the  plaintiff  had  invested  $20,- 
000 ;  the  lot  being  worth  $5,000,  and  the  building  as  it  then  stood 
$15,000.  This  money  was  idle  for  the  period  of  delay,  and  the 
plaintiff  was  paying  interest  upon  it. 

3  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  110,  111. 


CARRIERS   OF   GOODS — DAMAGES   FOR   DELAY  219 

There  was  no  evidence  other  than  that  afforded  by  the  order  it- 
self that  the  defendant  at  the  time  of  the  delivery  to  it  by  Watson 
of  the  brick  knew  for  what  they  were  to  be  used,  nor  did  the  de- 
fendant have  any  information  or  knowledge  that  the  plaintiff  was 
constructing  any  building  or  had  any  capital  invested,  or  would  in 
any  way  suffer  any  special  damages.  The  court  held  that  on  the 
facts:  (1)  The  defendant  was  liable;  (2)  that  the  correct  amount 
of  damage  was  the  rental  value  of  the  building  for  the  three  weeks' 
wrongful  delay,  to  wit,  three-fourths  of  $250,  or  $187.50.  Defend- 
ant excepted  to  both  rulings.  Verdict  and  judgment  for  $187.50, 
and  defendant  appealed. 

Hoke,  J.*  There  is  no  question  of  the  position  insisted  on  by 
defendant  that  the  consignor  of  goods  who  has  shipped  them  to 
his  own  order  may  divert  them  from  their  original  destination,  and 
as  a  general  rule  this  is  not  changed  by  the  fact  that  they  are  ship- 
ped with  directions  to  notify  a  given  person,  the  proposed  vendee. 
Under  such  an  arrangement,  without  more,  the  goods  remain  the 
property  of  the  original  owner,  and  he  has  the  right  to  dispose  of 
them  as  he  desires.  This  right,  however,  as  between  the  parties, 
does  not  exist  when  the  carrier  has  given  a  bill  of  lading  for  the 
goods,  which  has  been  indorsed  and  forwarded,  with  draft  attached, 
to  the  proposed  vendee,  and  such  vendee  has  paid  the  draft  and 
taken  over  the  bill  of  lading,  without  notice,  and  before  the  goods 
would  have  reached  their  original  destination  in  the  ordinary 
course  of  shipment.     *     *     * 

We  are  of  opinion,  however,  that  there  was  error  on  the  part 
of  the  court  as  to  the  amount  of  damages  which  plaintiff'  is  entitled 
to  recover,  on  the  facts  as  they  are  now  presented.  Damages  of 
the  kind  claimed  in  this  action,  i.  e.,  consequential  damages,  are 
only  recoverable  when  they  are  the  natural  and  probable  conse- 
quence of  the  carrier's  default.  Hale  on  Damages,  256.  And  or- 
dinarily such  damages  are  only  considered  natural  and  probable 
when  they  may  be  reasonably  supposed  to  have  been  in  contem- 
plation of  the  parties  at  the  time  the  contract  was  made.  Wood's 
Mayne  on  Damages,  18;  Nea'l  v.  Hardware  Co.,  122  N.  C.  104,  29 
S.  E.  96,  65  Am.  St.  Rep.  697.  It  may  be,  as  suggested  in  Tilling- 
hast-Styles  Co.  v.  Cotton  Mills,  143  N.  C.  274,  55  S.  E.  621,  that,  if 
the  contract  is  still  in  the  course  of  performance,  as  in  continuing 
contracts  of  carriage,  that  knowledge  brought  home  to  the  parties 
during  the  continuance  of  the  contract  relation,  and  in  time  to  have 
prevented  or  reduced  the  damages,  might  aff"ect  the  result.  But 
such  a  modification  of  the  general  rule  is  not  called  for  here,  as  the 
amount  of  damage  would  be  the  same  in  either  event.  And  for 
wrongful  delay  in  the  shipment  of  goods  having  a  market  value, 

*  Part  of  the  opinion  is  omitted. 


220  DAMAGES   IN   ACTIONS   AGAINST   CARRIERS 

the  damages  usually  supposed  to  be  in  contemplation,  is  the  differ- 
ence in  the  value  of  the  goods  at  the  time  when  they  should  have 
been  and  were  delivered.  In  other  cases  the  value  of  the  user  of  the 
goods  may  be  recovered  if  they  are  in  condition  to  use,  and  in  the 
absence  of  any  appreciable  loss  from  either  source  the  interest  on 
the  money  invested  in  the  goods  themselves  for  the  time  of  the 
wrongful  delay  would  be  the  correct  measure  of  compensation. 
This  being  the  amount  recoverable  under  the  general  rule,  if  plain- 
tiff seeks  to  recover  other  and  additional  damages  by  reason  of 
special  circumstances,  a  knowledge  of  these  circumstances  should 
be  brought  home  to  the  other  party.  As  we  have  said  in  Tilling- 
hast-Styles  Co.  v.  Cotton  Mills,  143  N.  C.  272,  55  S.  E.  622:  "If 
the  plaintiff  seeks  to  recover  different  and  additional  damages  aris- 
ing by  reason  of  special  circumstances,  he  is  required  to  show  that 
defendant  had  knowledge  of  these  circumstances,  and  of  a  kind 
from  which  it  could  be  fairly  and  reasonably  inferred  that  the  par- 
ties contemplated  that  they  should  be  considered  as  aft'ecting  the 
question  of  damages."  Instructive  cases  showing  the  application 
of  this  principle  will  be  found  in  Mather  v.  Express  Co.,  138  Mass. 
55,  52  Am.  Rep.  258;  Railway  v.  Ragsdale,  46  Miss.  458;  Home 
V.  Railroad,  L.  R.  C.  P.  71-72,  583. 

In  this  case  at  bar  there  are  no  facts  or  circumstances  shown 
which  would  entitle  plaintiff*  to  a  greater  amount  of  damages  than 
the  interest  on  the  value  of  the  two  car  loads  of  brick  for  the  time 
of  the  wrongful  delay.  There  was  no  evidence  off'ered  that  de- 
fendant company  was  aware  that  the  brick  were  to  be  used  in  a 
building  of  any  special  size  or  kind,  or  a  wrongful  diversion  would 
work  the  delay  which  resulted.  So  far  as  it  reasonably  appeared 
to  defendant,  the  brick  were  ordered  for  the  trade,  and  in  the  ab- 
sence of  any  testimony  as  to  change  in  the  value  of  the  brick  the 
interest  on  the  amount  invested  in  the  shipment  for  the  three 
weeks,  as  heretofore  stated,  is  the  measure  of  plaintiff's  loss  for 
which  defendant  can  be  held  responsible.  In  the  cases  chiefly  re- 
lied on  by  plaintiff,  Neal  v.  Hardware  Co.,  122  N.  C.  104,  29  S.  E. 
96,  65  Am.  St.  Rep.  697,  and  Rocky  Mount  Mills  v.  Railroad  Co., 
119  N.  C.  693,  25  S.  E.  854,  56  Am.  St.  Rep.  682,  the  character  of 
the  shipments  were  held  to  be  evidence  of  notice  of  special  cir- 
cumstances, tending  to  make  the  damage  claimed  in  those  cases 
the  natural  and  probable  result  of  the  wrongful  delay  on  the  part 
of  the  carrier.  There  is  error  to  defendant's  prejudice,  and  a  new 
trial  is  awarded. 


CARRIERS   OF    PASSENGERS— WRONGFUL    EJECTION  221 

III.  Carriers  of  Passengers— Wrongful  Ejection* 


YORTON  V.  AIILWAUKEE,  L.  S.  &  W.  R.  CO. 
(Supreme  Court  of  Wisconsin,  1SS4.    G2  Wis.  367,  21  N.  W.-516,  23  N.  W.  401.) 

Yorton,  the  plaintiff,  purchased  a  ticket  from  Marion  to  Oshkosh 
over  defendant's  road.  He  delivered  his  ticket  to  one  Sherman, 
the  conductor  of  defendant's  train,  asking  for  a  stop-over  check  at 
Clintonville.  The  conductor  by  mistake  gave  him  a  trip  check  in- 
stead, and  when,  after  a  stop-over,  plaintiff  got  on  a  second  train 
at  Clintonville  to  complete  his  journey  to  Oshkosh,  Bartlett,  the 
second  conductor,  refused  to  accept  the  check  for  further  passage, 
under  the  rules  of  the  company.  Plaintiff  refused  to  pay  fare  to 
his  destination  amounting  to  $1.85,  and  under  orders  of  the  con- 
ductor left  the  train.     By    reason  of  exposure  plaintiff  became  ill.® 

Cole,  C.  J.  The  sole  question  in  this  case  is,  was  the  rule  of 
damages  which  was  laid  down  by  the  learned  county  court  correct 
in  view  of  the  facts  disclosed  on  the  trial?  That  rule  was,  in  effect, 
that  the  plaintiff  was  only  entitled  to  recover  the  additional  fare 
he  had  to  pay  to  get  from  Clintonville  to  Oshkosh,  with  interest. 
When  the  case  was  here  on  a  former  appeal  (54  Wis.  234,  UN. 
W.  482,  41  Am.  Rep.  23)  we  thought  the  charge  of  the  court  as  to 
the  rule  of  damages  incorrect,  because  it  went  upon  the  hypothesis 
that  the  plaintiff'  was  unlawfully  put  off  the  train  at  the  Bear  Creek 
station.  We  held  that  the  plaintiff  was  not  entitled  to  ride  on  the 
second  train  upon  the  trip  check  which  he  had  received  from  the 
conductor  of  the  first  train,  and  that,  under  the  rules  of  the  com- 
pany, the  second  conductor  might  demand  the  additional  fare  to 
his  place  of  destination,  and,  upon  the  plaintiff's  refusal  to  pay, 
might  eject  him  from  the  train  at  some  usual  stopping-place,  using 
no  unnecessary  force  for  the  purpose.  We  said  the  second  con- 
ductor had  the  lawful  right  to  do  this,  and  was  bound  to  do  it,  in 
obedience  to  a  reasonable  rule  of  the  company  which  required  a 
passenger  to  obtain  from  his  conductor  a  stop-over  check  when  he 
desired  to  stop  before  reaching  the  place  to  which  he  had  purchased 
his  ticket;  and  the  mistake  or  fault  of  the  first  conductor  in  not 
giving  him,  on  request,  such  a  check,  would  not  give  him  the  law- 
ful right  to  ride  on  the  second  train,  though  he  might  recover  dam- 
ages against  the  company  for  the  wrongful  act  of  the  first  con- 
ductor. 

The  court  below  strictly  adhered  to  this  decision,  and  charged 
that  the  plaintiff  was  rightfully  put  off  the  train  at  the  Bear  Creek 

B  For  (liKciissioii  of  jiriiifiplrs,  sno  ITale  on  Daniaf^os  (2(1  Ed.)  §  117. 
'■•  Tlio  statoniciil,  of  facts  is  rcwrincn. 


222  DAMAGES   IN   ACTIONS  AGAINST   CARRIERS 

Station  by  the  second  conductor.  And  the  learned  county  court 
seemed  to  suppose  it  legally  and  logically  resulted  from  that  view 
that  the  plaintiff  was  confined  in  his  recovery  to  the  additional  fare 
he  had  been  compelled  to  pay,  and  interest  thereon ;  but  we  do 
not  think  that  conclusion  correct  when  the  other  undisputed  facts 
of  the  case  are  considered.  The  jury,  in  effect,  found,  in  answer 
to  the  question  submitted,  that  the  plaintiff  purchased  a  ticket  for 
Oshkosh,  which,  of  course,  entitled  him  to  passage  to  that  place. 
Further,  that  Conductor  Sherman,  when  he  took  up  this  ticket,  was 
informed  by  the  plaintiff  that  he  wished  to  stop  over  at  Clinton- 
ville,  and  requested  the  conductor  to  give  him  a  stop-over  check. 
Thereupon  Conductor  Sherman  gave  the  plaintiff,  doubtless 
through  mistake,  a  trip  check  as  and  for  a  lay-over  check.  The 
plaintiff  received  this  check  believing  it  to  be  a  stop-over  check. 
When  he  entered  upon  the  second  train  at  Clintonville,  the  next 
morning,  he  had  every  reason  to  suppose  that  he  had  the  proper 
voucher  for  a  passage  on  that  train  to  Oshkosh.  But  after  the 
train  started  from  Clintonville  he  was  told  by  the  second  con- 
ductor, when  his  ticket  was  called  for,  that  he  could  not  ride  on  his 
train  on  the  check  which  he  had  received  from  the  first  conductor, 
and  that  he  must  either  pay  his  fare  to  Oshkosh  or  leave  the  train. 
"  He  refused  to  pay  his  fare,  and  proceeded  on  his  journey,  but  con- 
cluded to  obey  the  order  of  the  conductor  and  leave  the  train  at 
Bear  Creek. 

The  question  then  is,  had  not  the  plaintiff  the  right  to  adopt  this 
course — leave  the  train  as  he  was  ordered  to  do,  and  hold  the  com- 
pany responsible  for  the  fault  or  mistake  of  the  first  conductor? 
We  are  clearly  of  the  opinion  that  he  had.  And,  choosing  that 
alternative,  what  damages  would  he  be  entitled  to  recover?  It 
seems  to  us  he  could  recover  all  such  damages  as  were  the  direct 
and  natural  result  of  the  wrongful  act  complained  of.  It  is  not 
entirely  clear  from  the  complaint  whether  the  action  is  for  a  breach 
of  contract,  or  for  a  violation  of  duty  as  common  carrier,  though 
we  assume  that  it  is  of  the  latter  character.  But  it  can  make  no 
essential  dift'erence  as  to  the  rule  of  damages  upon  the  facts  proven. 
Whatever  damages  the  plaintiff  can  show  he  sustained,  which  were 
the  direct  and  natural  consequence  of  the  injurious  act  of  Con- 
ductor Sherman,  these  the  plaintiff  may  recover. 

The  learned  counsel  for  the  defendant  says  that  the  only  natural 
and  legitimate  result  of  that  act  was  to  compel  the  plaintiff  to 
again  pay  his  fare  from  Clintonville  to  Oshkosh.  This  might  have 
been  the  only  loss  the  plaintiff  sustained  from  the  mistake  of  Con- 
ductor Sherman  had  he  seen  fit  to  pay  his  fare.  But  he  did  not 
do  this,  and  exercised  the  option  which  the  law  gave  him,  of  leav- 
ing the  train  and  looking  to  the  company  for  redress.  The  same 
counsel  further  says  the  plaintiff  might  have  protected  himself 
from  all  loss  or  inconvenience  arising  from  the  fault  or  mistake  cf 


CARRIERS   OF   PASSENGERS — WRONGFUL    EJECTION  223 

the  first  conductor  at  a  trifling  expense,  and  that  he  failed  in  a 
social  duty  by  omitting  to  do  so.  The  jury  found  that  he  had  suffi- 
cient money  with  him  when  on  the  second  train  to  have  paid  his 
fare  from  Clintonville  to  Oshkosh,  But  was  he  under  any  legal 
obligation  to  pay  the  additional  fare  exacted?  He  had  once  paid 
for  a  ticket  to  Oshkosh,  and  claimed  the  right  to  ride  to  his  des- 
tination. Probably  most  persons  having  the  ability  would,  under 
like  circumstances,  pay  the  additional  fare  rather  than  submit  to 
the  inconvenience  and  delay  of  leaving  the  train  at  that  hour  and 
place.  But,  as  we  have  said  before,  we  think  the  plaintiff  had  the 
option  either  to  pay  or  leave  the  train  an'cl  resort  to  his  legal  rem- 
edy. There  are  men  who,  in  social  life  and  business  matters,  act 
upon  the  maxim,  "INIillions  for  defense,  but  not  a  cent  for  tribute;" 
in  other  words,  men  who  stand  upon  their  strict  legal  rights. 
There  is  certainly  a  class  of  cases  where  the  law  imposes  upon  a 
party  injured  by  another's  breach  of  contract  or  tort  the  duty  of 
making  reasonable  exertions  to  render  the  injury  as  light  as  pos- 
sible. 

Counsel  have  referred  to  authorities  which  afBrm  that  rule  of 
law.  They  have  also  cited  cases  which  hold  that  a  passenger  can- 
not insist  upon  remaining  on  the  train  without  paying  fare,  in' 
order  that  force  shall  be  used  for  his  expulsion  and  then  claim  dam- 
ages for  the  force  thus  used.  But  we  have  not  been  referred  to  a 
case  analogous  to  this  which  decides  that  it  was  the  duty  of  the 
plaintiff  to  have  paid  the  fare  exacted  and  remain  on  the  train, 
in  order  to  protect  the  company  against  the  consequences  of  the 
mistake  or  fault  of  the  first  conductor.  According  to  our  view,  the 
law  imposed  upon  him  no  such  duty.  On  the  contrary,  when  he 
was  ordered  to  leave  the  train  or  pay  the  additional  fare,  he  had 
an  election  to  leave,  or  remain  on  the  condition  of  paying.  Hav- 
ing concluded  to  leave,  he  has  his  remedy  against  the  company 
for  his  damages,  which  are  not  necessarily  limited  to  the  addi- 
tional fare  paid  subsequently  to  go  to  Oshkosh,  and  interest  there- 
on. The  law  allows  him  to  recover  full  compensation  for  the  dam- 
ages he  sustained  by  reason  of  the  fault  of  the  first  conductor.  We 
feel  it  but  just  to  observe  that  the  conduct  of  Bartlett,  the  second 
conductor,  was  most  considerate,  fair,  and  honorable.  For  while 
insisting  that  the  plaintiff  must  pay  his  fare  to  Oshkosh  or  leave 
the  train,  he,  at  the  same  time,  told  the  plaintiff'  that  if  he  did  pay, 
on  the  arrival  of  the  train  at  Oshkosh  he  would  go  with  him  to 
Conductor  Sherman's  house,  which  was  only  a  short  distance  from 
the  depot,  and  if  Sherman  said  plaintiff  was  entitled  to  passage  to 
Oshkosh  he  would  refund  the  money  exacted.  Thus  Mr.  Bartlett 
proposed  doing  all  in  his  power  to  make  the  matter  right,  while 
he  enforced  the  rules  of  hk  company.  His  conduct  in  that  behalf, 
certainly  deserves  commendation. 


224  DAMAGES   IN   ACTIONS   AGAINST   CARRIERS 

When  this  case  was  here  on  the  first  appeal,  enhanced  damages 
were  claimed  because  the  plaintiff  was  compelled  to  leave  the  train 
at  the  Bear  Creek  station  in  the  night,  and  was  exposed  to  the  chil- 
ly air,  took  cold,  became  sick,  etc.  It  appeared,  then,  from  the 
plaintiff's  own  testimony,  that  before  the  train  left  Clintonville  the 
second  conductor  demanded  fare  of  him  and  told  him  he  could  not 
ride  on  the  trip  check  which  he  held,  and  that  the  plaintiff  had 
ample  opportunity  to  leave  the  train  at  Clintonville.  It  was  in  view 
of  this  testimony,  and  of  the  plaintiff's  refusal  either  to  leave  the 
train  or  pay  his  fare,  that  the  remark  was  made  that  plaintiff  should 
not  recover  for  any  exposure  or  sickness  which  he  had  brought 
upon  himself  by  his  own  foolish  and  perverse  conduct,  he  having 
been  rightfully  put  off  the  train  at  Bear  Creek.  On  the  last  trial 
the  jury  found  that  the  plaintiff  was  not  notified  by  Bartlett  he 
could  not  ride  on  his  train  on  the  trip  check  before  the  train  started 
from  Clintonville.  This  fact  was  deemed  material  as  bearing  on 
the  damages  which  the  plaintiff  should  recover  by  reason  of  the 
exposure  at  Bear  Creek. 

There  are  many  cases  cited  on  the  brief  of  counsel  on  both  sides 
to  sustain  their  respective  positions.  While  we  have  examined 
them,  we  do  not  deem  it  necessary  to  comment  on  them  here. 
They  are  all  distinguishable  from  the  case  before  us.  The  judg- 
ment of  the  county  court  is  reversed,  and  the  cause  is  remanded 
for  a  new  trial. 


LITTLE  ROCK  RY.  &  ELECTRIC  CO.  v.  DOBBINS. 

(Supreme  Court  of  Arkansas,  1906.     78  Ark.  553,  95  S.  W.  788.) 

Action  by  D.  F.  Dobbins  against  the  Little  Rock  Railway  & 
Electric  Company  to  recover  damages  for  the  wrongful  ejection  of 
plaintiff  from  a  street  car  operated  by  defendant  company.  There 
was  a  verdict  for  plaintiff  for  $500  compensatory  damages  and  $250 
exemplary  damages,  and  from  the  judgment  entered  thereon  de- 
fendant appeals. 

Wood,  j/  *  *  *  q^\^Q  court  gave,  at  the  instance  of  appellee, 
the  following  instruction:  "(6)  The  court  instructs  the  jury  that, 
if  you  find  for  the  plaintiff  on  the  first  or  second  paragraph  of  his 
complaint,  or  on  both,  you  should  assess  his  damages  at  such  sum 
as  you  believe  from  the  evidence  would  be  a  fair  pecuniary  com- 
pensation to  him  for  the  inconvenience,  injured  feelings,  indignity, 
and  humiliation  suffered  by  him,  if  any,  by  reason  of  his  being  ex- 
pelled, under  the  circumstances  he  was,  from  defendant's  car;  and, 
in  addition  to  that,  if  you  believe  from  the  evidence  that  the  act  of 
defendant's  conductor  in  expelling  or  causing  plaintiff  to  be  ex- 

7  Tart  of  the  opiuiou  is  omitted  and  the  statement  of  facts  is  rewritten. 


CARRIERS   OF   PASSENGERS — WRONGFUL    EJECTION  J-%) 

pelled  from  said  car  was  malicious  and  oppressive,  then  you  may 
add  such  sum  you  may  think  proper,  under  the  circumstances,  by 
way  of  punitive  or  exemplary  damages  as  a  punishment  for  the 
wrongful  conduct  of  defendant's  conductor."  The  court  refused 
to  give  instructions  14  and  15,  asked  by  defendant.  They  are  as 
follows:  "(14)  You  are  instructed  that  the  plaintiff  is  not  entitled 
to  recover  exemplary  damages  in  this  case.  (15)  A  street  railway 
company  is  not  liable  in  exemplary  damages  for  the  wrongful  act 
of  its  employes  in  ejecting  a  passenger  from  its  car,  in  the  absence 
of  proof  of  want  of  care  in  the  selection  of  such  employes  and  of 
authority  given  it  for  the  commission  of  the  act,  or  ratification 
thereof  after  its  commission." 

In  Foster  v.  Pitts,  63  Ark.  387,  38  S.  W.  1114,  this  court  had  un- 
der consideration  the  question  of  whether  or  not  an  individual  was 
liable,  in  punitive  damages,  for  the  malicious  acts  of  his  agent,  in 
the  scope  of  the  agent's  authority,  and  the  court  said :  "When  an 
agent  Of  an  individual  acts  maliciously,  he  is  presumed  to  act  with- 
out authority,  and,  while  the  agent  is  liable,  the  principal  is  not, 
for  punitive  damages,  unless  it  appear  that  he  aided,  adopted,  or 
ratified  the  malicious  act  of  the  agent  with  a  full  knowledge  of  the 
facts."  We  cited,  to  support  that  doctrine,  the  case  of  Lakeshore 
Ry.  Co.  V.  Prentice,  147  U.  S.  104,  13  Sup.  Ct.  261,  2>7  L.  Ed.  97, 
where  it  is  said:  "Exemplary  or  punitive  damages  being  awarded 
not  by  way  of  compensation  to  the  sufferer,  but  by  way  of  punish- 
ment of  the  ofi'ender,  and  as  a  warning  to  others,  can  only  be 
awarded  against  one  who  has  participated  in  the  offense.  A  prin- 
cipal, therefore,  though,  of  course,  liable  to  make  compensation  for 
injuries  done  by  his  agent  within  the  scope  of  his  employment,  can- 
not be  held  liable  for  exemplary  or  punitive  damages,  merely  by 
reason  of  wanton,  oppressive,  or  malicious  intent  on  the  part  of  the 
agent.  The  rule  has  the  same  application  to  corporations  as  to  in- 
dividuals. This  court  has  often,  in  cases  of  this  class,  as  well  as 
in  other  cases,  affirmed  the  doctrine  that  for  acts  done  by  the  agents 
of  corporations,  in  the  course  of  its  business,  and  of  their  employ- 
ment, the  corporation  is  responsible,  in  the  same  manner  and  to  the 
same  extent,  as  an  individual  is  responsible  under  similar  circum- 
stances." 

Counsel  for  appellant  rely  upon  these  cases  to  support  their  con- 
tention that  exemplary  damages  could  not  be  awarded  in  this  case, 
and  that  the  court  erred  in  giving  the  instruction  for  appellee  and 
in  refusing  the  prayers  of  appellant,  supra.  But  the  above  cases 
are  not  applicable  here.  The  Supreme  Court  of  the  United  States 
makes  no  distinction  between  individuals  and  public  carriers  of 
passengers,  in  holding  that  such  corporations,  like  an  individual, 
cannot  be  held  liable  in  exemplary  damages  for  the  malicious  acts 
of  its  agents  which  it  had  not  authorized  or  ratified.     Railway  v. 

COOLKY  DAil. 15 


226  DAMAGES   IN  ACTIONS  AGAINST  CARRIERS 

Prentice,  supra.  This  court,  while  enforcing  the  above  rule  as  to 
individuals  (Foster  v.  Pitts,  supra),  has  applied  a  different  rule  Jn 
the  case  of  railroad  corporations.  Such  corporations  are  liable  in 
punitive  damages  for  the  willful,  wanton,  and  malicious  conduct  of 
their  agents  and  servants  in  the  line  of  their  duties.  Citizens' 
Street  Ry.  v.  Steen,  42  Ark.  321 ;  Railway  v.  Hall,  53  Ark.  10,  13 
S.  W.  138;  Railway  v.  Davis,  56  Ark.  51,  19  S.  W.  107;  Fordyce 
V.  Nix,  58  Ark.  136,  23  S.  W.  967;  Railway  v.  Power,  67  Ark.  142, 
53  S.  W.  572;  Railway  v.  Wilson,  70  Ark.  136-144,  66  S.  W.  661, 
91  Am.  St.  Rep.  74. 

This  rule  as  to  carriers  of  passengers  is  grounded  on  public 
policy.  Chief  Justice  Wood,  in  the  case  of  Pullman  Palace  Car 
Co.  V.  Lawrence,  74  Miss.  803,  22  South.  53,  declares  the  rule  and 
the  reason  therefor  as, follows:  "It  is  argued  that  vindictive  dam- 
ages are  in  their  nature  penal,  and  that  no  one  should  be  liable  to 
punishment  unless  the  act  complained  of  is  his  own  act,  made  so  by 
his  authorization  or  ratification  of  it  when  committed  by  the  serv- 
ant, and  that  it  is  illogical  for  the  courts  to  do  anything  punitive  in 
character,  unless  the  master  is  directly  and  personally  responsible 
for  the  very  act  complained  of.  The  sufficient  answer  to  this  con- 
tention is  that  the  judge-made  law  of  punitive  damages  is  not  the 
result  of  logic,  but  of  public  necessity,  as  text-writers  and  courts 
have  repeatedly  shown.  If  corporations,  artificial  beings  who  can 
act  only  through  agents  and  servants  in  their  varied  and  multitu- 
dinous and  constantly  recurring  business  dealings  with  the  public, 
can  never  be  held  liable  in  punitive  damages  for  the  acts  of  their 
servants  unless  expressly  ratified  by  them,  no  matter  how  gross 
and  outrageous  the  wrongful  act  of  the  servant,  we  feel  perfectly 
safe  in  declaring  that  no  recovery  for  more  than  mere  compensatory 
damages  will  ever  again  be  awarded  against  corporations.  Corpo- 
rations never  expressly  authorize  their  servants  to  beat  or  insult 
or  outrage  those  having  business  relations  with  them,  and  they 
rarely  ratify  such  conduct.  Having,  by  the  constitution  of  their 
being,  to  act  solely  by  agents  or  servants,  they  must,  as  matter  of 
sound  public  policy,  be  held  liable  for  all  the  acts  of  their  agents 
and  servants  who  commit  wrongs  while  performing  the  master's 
business  and  in  the  scope  of  their  employment,  and  this  to  the 
extent  of  liability  for  punitive  damages  in  proper  cases.'' 

This  doctrine,  although  apparently  in  conflict  with  the  decision 
of  the  Supreme  Court  of  the  United  States,  is  supported  by  the 
majority  of  the  states  that  have  announced  a  rule  upon  the  subject, 
and  is  in  accord  with  our  own  views  as  announced  in  several  cases 
supra.  In  addition  to  these  cases,  and  the  authorities  cited  in 
them,  see  Joyce  on  Dam.  vol.  1,  §  139  et  seq. ;  Watson  on  Dam.  & 
Personal  Inj.  §  730,  and  numerous  authorities  cited  in  notes.  See, 
also,  2  Red.  on  Rys.  §  203,  note  1 ;  Hutch,  on  Car.  §  815 ;  2  Wood 
R.    R.    (Minor's   Ed.)    pp.    1416,    1417.     Accepting   appellee's   ver- 


CARRIERS   OF   PASSENGERS — WRONGFUL   EJECTION  227 

sion  of  the  manner  of  his  expulsion  from  the  car  by  appellant's  con- 
ductor, which  the  jury  has  done,  the  evidence  was  sufficient  to  war- 
rant a  verdict  for  punitive  damages.     *     *     * 

The  court  properly  instructed  the  jury  upon  the  subjects  of  com- 
pensatory and  punitive  damages,  and  the  jury  were  warranted  in 
finding  that  the  conduct  of  appellant's  conductor  in  the  line  of  his 
duty  was  willful,  wanton,  and  malicious.  Therefore,  we  will  not 
disturb  the  verdict.  Nor  can  we  say,  in  view  of  the  duty  of  street 
car  companies  to  protect  its  passengers  from  insult  and  injury, 
especially  at  the  hands  of  its  employes,  that  the  verdict  was  ex- 
cessive.    *     *     *     Judgment  affirmed.* 

8  For  other  cases  discussing  tlie  liability  of  corporations  for  exemplary 
damages,  see  Goddard  v.  Grand  Trunk  Jlailway,  ante,  p.  190,  and,  contra, 
Lake  Shore  &  M.  S.  Ry.  v.  Prentice,  ante,  p.  194. 


228  DAMAGES   IN  ACTIONS  AGAINST  TELEGRAPH   COMPANIES 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH 
COMPANIES 

I.  Compensatory  Damages — Proximate  and  Certain  Damages  * 


HERRON  V.  WESTERN  UNION  TEL.  CO. 

(Supreme  Court  of  Iowa,  1894.     90  Iowa,  129,  57  N.  W.  696.) 

Action  to  recover  for  damages  alleged  to  have  been  caused  by 
the  negligence  of  defendant  in  not  delivering  in  due  time  a  tele- 
graphic message.  There  was  a  trial  by  jury,  and  a  verdict  and 
judgment  for  plaintiff.     The  defendant  appeals. 

Robinson,  J.^  On  the  31st  day  of  March,  1890,  the  plaintiff  was 
the  owner  of  a  stallion  named  "Mark,"  which  was  in  the  custody 
of  his  brother  George  Herron,  at  Warren,  in  Lee  county.  *  *  * 
On  that  date  one  George  Cassidy  went  to  the  place  where  the  horse 
was  kept,  and  made  an  oft'er  for  him  to  a  brother  of  plaintiff,  named 
B.  B.  Herron,  and  requested  that  he  telegraph  the  offer  to  the 
plaintiff.  Accordingly  B.  B.  Herron  went  to  the  office  of  the  de- 
fendant in  Warren,  and  left  to  be  sent  to  plaintiff  a  night  message 
which  read  as  follows:  "Warren,  March  31,  1890.  To  C.  C.  Her- 
ron, Clarksville,  Iowa :  Have  traded  with  George  Cassidy  for  Mark, 
three  horses,  1,  2,  3,  two  hundred  balance,  fifty  dollars  young  cattle. 
B.  B.  Herron."  There  was  evidence  which  tended  to  show  that  the 
offer  of  Cassidy  was  to  be  considered  withdrawn  on  Wednesday, 
April  2d,  if  not  accepted  on  or  before  that  day.  *  *  *  The  dis- 
patch was  received  by  the  agent  of  defendant  at  Clarksville  before 
9  o'clock  in  the  morning  of  April  1st,  and  was  at  once  given  to  a 
messenger  to  deliver.  After  an  absence  of  several  hours  he  re- 
turned it  with  the  statement  that  he  could  not  find  the  person  to 
whom  it  was  addressed.  The  agent  then  sent  a  service  message 
to  the  office  at  Warren,  stating  that  plaintiff  was  unknown  in 
Clarksville,  and  asking  for  a  better  address.  At  noon  of  Wednes- 
day he  received  an  answer  stating  that  plaintiff  was  a  patent  fence 
man,  and  would  be  found  in  town.  At  about  the  time  that  dispatch 
reached  the  agent  at  Clarksville,  the  plaintiff  received  a  letter  from 
B.  B.  Herron,  telling  of  the  trade,  and  asking  why  the  dispatch 
had  not  been  answered.  The  plaintiff  then  went  to  the  office,  and 
sent  a  dispatch  to  his  brother  to  do  the  best  he  could  with  Cassidy. 
While  he  was  there,  the  dispatch  of  his  brother  was  delivered  to 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2ci  Ed.)  §  123. 

2  Part  of  the  opinion  is  omitted. 


PROXIMATE  AND  CEHTAIN  DAMAGES  229 

him.  His  dispatch  was  not  delivered  to  his  brother  until  Wednes- 
day evening,  and  Cassidy  was  not  seen  until  the  next  day,  when 
he' refused  to  take  the  horse.  The  plaintiff  returned  to  Lee  county 
in  July,  and  took  the  horse  to  Nebraska,  where  he  sold  him  for  $50. 
He  seeks  to  recover  in  this  action  the  damages  he  claims  to  have 
sustained  in  consequence  of  the  failure  of  defendant  to  deliver  the 
message  in  time  for  him  to  accept  the  offer  of  Cassidy.  The  judg- 
ment was  rendered  for  $177.65,  the  amount  of  the  verdict,  with 
interest  and  costs.     *     *     * 

The  court  charged  the  jury  that,  if  plaintiff  was  entitled  to  re- 
cover, the  measure  of  damages  would  be  the  difference  between 
the  price  he  would  have  received  from  Cassidy  and  the  price  he 
afterwards  obtained  for  the  horse,  and  the  reasonable  value  of  the 
care  and  keeping  of  the  horse,  with  6  per  cent,  interest  from  the 
time  the  horse  was  sold.  The  appellant  contends  that  the  measure 
of  damage  given  by  the  charge  was  erroneous.  The  blank  on 
which  the  message  sent  was  written  stated  that  errors  and  delays 
might  be  prevented  by  repetition,  for  which  an  extra  price  would 
be  charged,  but  that  defendant  would  receive  night  messages,  to 
be  sent  without  repetition,  at  a  reduced  rate,  "and  upon  the  ex- 
press condition  that  the  sender  will  agree  that  he  will  not  claim 
damages  for  errors  or  delays,  or  for  nondelivery  of  such  message, 
happening  from  any  cause,  beyond  a  sum  equal  to  ten  times  the 
amount  paid  for  transmission."  We  do  not  understand  the  ap- 
pellant to  claim  that  the  plaintiff  is  bound  by  the  provisions  quoted, 
but  it  contends  that  it  had  no  knowledge  of  the  transaction  out  of 
which  the  message  grew;  that  the  message  did  not  disclose  the 
interests  which  were  dependent  upon  it ;  and  that  defendant  should 
not  be  charged  with  any  liability  which  it  cannot  be  reasonably 
said  would  be  an  ordinary  and  natural  result  of  a  failure  to  transmit 
the  message  within  a  reasonable  time,  and  therefore  contemplated 
by  the  parties  when  the  defendant  undertook  to  send  the  message. 
The  evidence  shows  that  the  agent  of  defendant  at  Warren  knew 
of  the  horse  when  the  message  was  given  him  to  send,  that  it  re- 
lated to  a  pending  trade,  and  that  an  answer  was  expected.  Knowl- 
edge of  these  facts  was  sufficient  to  authorize  the  jury  to  find  that 
defendant  should  be  charged  with  knowledge  of  the  importance 
of  the  message  when  it  was  received.  Garrett  v.  Telegraph  Co., 
83  Iowa,  262,  49  N.  W.  88.    . 

It  is  claimed  that,  if  defendant  is  liable  to  plaintiff  for  all  the 
damages  he  sustained  by  reason  of  the  delay  in  transmitting  the 
message,  the  measure  of  that  damage  is  the  difference  between  the 
market  value  of  the  horse  and  the  price  which  Cassidy  would  have 
paid  f{jr  him  had  his  ofTcr  been  accepted.  That  would  probably 
have  been  true  had  there  been  a  market  value  for  the  horse,  but 
the  evidence  shows  that  there  was  not.  He  was  an  inferior  animal, 
and   valu.'d)le  only   for  brcccling  piu-j^jses.     There  was  no  market 


230  DAMAGES   IN  ACTIONS  AGAINST  TELEGRAPH   COMPANIES 

for  that  kind  of  horses  in  Lee  county  and  vicinity.  George  Herron, 
who  had  charge  of  the  one  in  question,  made  diligent  effort  to  sell 
him  after  the  31st  day  of  March  until  he  was  taken  to  Nebraska, 
but  without  success.  The  plaintiff  also  personally  made  every  ef- 
fort possible  to  effect  a  sale,  and  finally  took  the  horse  to  Nebraska, 
and  traded  him  for  land,  receiving  for  him  $50  in  value.  It  is  not 
true,  as  a  general  rule  of  law,  in  such  cases  as  this,  that  the  plain- 
tiff would  be  entitled  to  recover  the  difference  between  the  price 
he  would  have  received  had  he  been  able  to  accept  the  offer  and 
the  price  he  actually  received,  but  it  appears  that  the  plaintiff  in 
fact  sold  the  horse  for  all  which  could  have  been  realized  for  him 
with  reasonable  effort  to  secure  the  best  price  attainable.  The 
value  of  the  property  Cassidy  offered  for  the  horse  was  $250;  hence 
plaintiff  sold  him  for  $200  less  than  the  amount  of  Cassidy's  offer. 
It  was  necessary  for  plaintiff  to  pay  the  expense  of  keeping  the 
horse  from  the  2d  day  of  April  until  he  was  sold,  and  the  evidence 
sustains  the  allowance,  if  any,  made  by  the  jury  for  that  purpose. 
The  loss  in  price,  and  the  expense  of  keeping  the  horse,  with  in- 
terest, represented  actual  damages  which  the  plaintiff  sustained 
by  not  accepting  the  offer  of  Cassidy;  and  it  is  the  policy  of  the 
law  to  permit  a  person  injured  by  the  wrong  of  another  to  recover 
the  amount  of  his  loss.  Where  the  loss  results  from  a  failure  to 
sell  the  property  for  which  there  is  no  market  value,  its  actual 
value  may  be  ascertained  by  means  of  the  best  evidence  of  which 
the  case  admits.  3  Suth.  Dam.  476;  1  Scdg.  Dam.  §  250;  Wood, 
Mayne,  Dam.  §  22;  White  v.  Cattle  Co.,  75  Tex.  465,  12  S.  W.  867. 
We  conclude  that  the  measure  of  damages  adopted  by  the  court 
as  applied  to  the  facts  in  this  case  was  not  erroneous.  *  *  * 
We  find  no  sufficient  ground  for  disturbing  the  judgment  of  the 
district  court,  and  it  is  therefore  affirmed. 


II.  Same — Remote  and  Speculative  Damages 


WESTERN  UNION  TELEGRAPH  CO.  v.  TWADDELL.' 

(Court  of  Civil  Appeals  of  Texas,  1907.    47  Tex.  Civ.  App.  51, 103  S.  W.  1120.) 

Action  by  M.  N.  Twaddell  against  the  Western  Union  Telegraph 
Company.    From  a  judgment  for  plaintiff,  defendant  appeals. 

Conner,  C.  J.*  The  court  below  awarded  appellee  a  judgment 
for  $400  as  commissions  or  profits  that  the  court  found  would  have 

»  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  124. 
«  Part  of  tbe  opinion  is  omitted. 


REMOTE   AND    SPECULATIVE    DAMAGES 


231 


been  received  by  him  upon  a  sale  of  land  that  could  and  wrould 
have  been  effected  but  for  appella-nt's  negligence  in  failing  to  de- 
liver a  telegram  to  appellee's  brother,  J.  J.  Twaddell.     *     *     * 

As  shown  by  the  evidence,  the  telegram  delivered  by  appellee 
for  transmission  was  as  follows:  "6 — 26 — 1906.  J.  J.  Twaddell, 
Waco,  Texas.  You  can  make  big  money  next  month — come  at 
once.  M.  N.  Twaddell."  Appellee  testified  that  he  was  a  real  es- 
tate agent  and  that  as  such  he  had,  at  the  date  of  the  telegram, 
listed  with  him  for  sale  1,600  acres  of  land  in  Dallam  county  at 
$2.50  per  acre,  and  that,  had  the  telegram  been  delivered  to  J.  J. 
Twaddell  promptly,  J.  J.  Twaddell  would  have  procured  a  pur- 
chaser for  the  land  at  $2.75  per  acre,  which  would  have  given  a 
net  profit  to  him,  M.  N.  Twaddell,  of  25  cents  per  acre,  or  the  total 
sum  of  $400,  which  was  the  amount  for  which  he  sued  in  this  case. 
J.  J.  Twaddell  testified  that  one  of  his  friends,  T.  W.  Garrett,  re- 
siding at  Beaumont,  Tex.,  would  have  purchased  the  land  at  $2.75 
per  acre,  had  he  received  the  telegram.  Other  proof  showed  failure 
to  deliver  the  telegram  by  reason  of  the  negligence  of  appellant's 
employes  at  Waco,  Tex.,  where  J.  J.  Twaddell  resided,  and  that 
the  owner  sold  the  land  to  other  parties  on  July  8th  before  Mr. 
Garrett  could  go  to  Dalhart  and  close  the  contract  with  appellee. 

No  notice  other  than  that  to  be  inferred  from  the  face  of  the 
telegram  is  alleged  or  shown  to  have  been  given  to  appellant,  and 
the  "telegram,  both  as  alleged  and  proved,  is  wholly  insufficient  to 
convey  notice  to  appellant  of  the  special  damages  sought  and  re- 
covered in  this  case.  Special  damages,  such  as  would  not  naturally 
or  ordinarily  follow  from  a  breach  of  a  contract,  will  not  be 
awarded,  unless  it  be  shown  that  the  party  sought  to  be  charged 
with  the  breach  had  knowledge  of  the  peculiar  circumstances  from 
which  the  damage  might  arise.  In  other  words,  it  must  be  alleged 
and  proved  that  the  particular  loss  was  in  contemplation  of  both 
the  parties  to  the  contract,  at  the  time  it  was  made,  as  a  contin- 
gency that  might  follow  the  nonperformance.  This  principle  has 
ibeen  so  frequently  decided  that  it  seems  superfluous  to  cite  any 
authority;  but  see  Daniel  v.  W.  U.  Tel.  Co.,  61  Tex.  452,  48  Am. 
Rep.  308,  Elliott  v.  W.  U.  Tel.  Co.,  75  Tex.  18,  12  S.  W.  954,  16 
Am.  St.  Rep.  872,  and  W.  U.  Tel.  Co.  v.  Williford,  2  Tex.  Civ.  App. 
574,  22  S.  W.  244. 

The  telegram  as  declared  upon  in  the  petition  wholly  fails  to 
indicate  that  the  failure  to  deliver  would  result  in  the  consequences 
shown  and  relied  upon  in  this  case.  Indeed,  both  as  declared  upon 
and  as  proved,  the  damage  for  failure  to  deliver  seems  wholly  spec- 
ulative. *  *  *  It  is  ordered  that  the  judgment  be  reversed, 
and  the  cause  remanded  for  a  new  trial. 


232  DAMAGES   IN   ACTIONS   AGAINST   TELEGRAPH   COMPANIES 


III.  Same — Damages  Not  Within  Contemplation  of  Parties — 
Notice  of  Purpose  and  Importance  of  Message  ^ 


WESTERN  UNION  TELEGRAPH  CO.  v.  MILTON. 

(Supreme  Court  of  Florida,  1907.    53  Fla.  484,  43  South.  495,  11  L.  R.  A.  [N. 
S.]  560,  125  Am.  St.  Rep.  1077.) 

Action  by  John  Milton,  Jr.,  against  the  Western  Union  Tele- 
graph Company  for  damages  for  failure  to  transmit  and  deliver  a 
correct  copy  of  a  telegram  received  from  plaintiff  for  transmission. 
There  was  a  judgment  for  plaintiff'  for  $133.50  and  $20  interest. 
The  defendant  brings  error. 

Whitfield,  j.e  *  *  *  Exception  was  taken  to,  and  error  is 
assigned  on,  the  refusal  of  the  court  to  give  the  following  charge 
requested  by  the  defendant:  "(2)  The  evidence  having  been 
closed  and  the  argument  of  counsel  concluded,  the  court  instructs 
you  that  under  the  undisputed  facts  the  plaintiff  can  recover  only 
the  tolls  paid  for  sending  the  telegram  which  is  the  basis  of  this 
suit  to  the  extent  of  the  amount  proved  to  have  been  paid  to  the 
defendant  company  for  tolls  for  transmitting  the  message,  together 
with  interest  at  the  rate  of  8  per  cent,  per  annum  from  the  date  the 
same  was  paid." 

The  declaration  alleges,  and  the  proof  shows :  That  George  H. 
McFadden  &  Bros.  Agency,  of  Pensacola,  Fla.,  had  agreed  to  take 
and  receive  from  John  Milton,  Jr.,  the  plaintiff,  of  Marianna,  Fla.,  at 
10  cents  per  pound,  all  the  cotton  of  middling  grade  bought  by 
plaintiff  on  a  given  day,  upon  plaintiff's  reporting  by  wire  the  num- 
ber of  bales  so  bought  on  said  day.  That  on  September  24,  1904, 
the  plaintiff  delivered  to  the  defendant  the  following  message: 
"Marianna,  Florida,  9—24 — 04.  George  H.  McFadden  &  Bros. 
Agency,  Pensacola,  Florida:  Bought  for  your  account  to-day's 
limit  175.  Am  doing  my  best  to  rush  bill  lading.  John  Milton,  Jr." 
That  the  words  "one  hundred  and  seventy-five"  meant  175  bales  of 
cotton,  which  plaintiff  had  that  day  purchased  for  said  agency. 
That  defendant,  in  transmitting  said  message,  negligently  and  care- 
lessly substituted  and  used  the  words  "one  hundred  and  twenty-five" 
in  the  place  and  stead  of  the  words  "one  hundred  and  seventy-five." 
That  said  agency,  being  only  advised  of  the  purchase  of  125  bales 
of  cotton  by  plaintiff,  by  reason  of  the  defendant's  said  error  and 
negligence,  would  only  receive  as  purchased  on  said  day  125  bales 
of  cotton,  and  rejected  the  other  50  bales.    That  the  market  price 

B  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  125. 
8  Part  of  tlie  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


NOTICE    OF   PURPOSE    AND   IMPORTANCE    OF   MESSAGE  23:^ 

of  cotton  declined,  and  the  50  bales  brought  only  9i4  cents  per 
pound,  to  the  plaintiff's  loss  of  $133.50.  It  is  further  alleged  that 
defendant  well  knew  that  the  George  H.  McFadden  &  Bros.  Agency 
was  engaged  in  dealing  in  cotton,  and  that  the  plaintiff  had  been 
engaged  in  shipping  cotton  to  and  buying  cotton  for  said  agency. 
The  proofs  show  that  the  agent  of  the  telegraph  company,  who 
was  also  the  agent  of  the  railroad,  knew  plaintiff's  business,  and 
had  sent  similar  messages  daily,  and  he  had  to  sign  the  bills  of 
lading  as  agent  for  the  railroad;  that  said  agent  knew  McFadden 
Bros,  were  cotton  buyers,  and  that  the  plaintiff  had  an  agreement 
with  them  to  buy  cotton  for  them  on  the  limits  given  plaintiff'  each 
day  by  means  of  the  defendant  telegraph  company. 

In  cases  where  losses  have  been  sustained  by  reason  of  the  neg- 
ligence of  another,  damages  may  be  recovered  for  losses  that 
would  likely  or  probably  result,  where  such  negligence  is  a  proxi- 
mate or  directly  contributing  cause  of  the  loss,  and  the  plaintiff 
is  not  at  fault.  The  damages  must  be  for  losses  that  would  likely 
or  probably  result,  and  did  result,  from  the  proximate  or  directly 
contributing  negligence  of  the  defendant,  and  the  plaintiff  must 
not  be  at  fault.  If  there  is  an  independent  efficient  cause  interven- 
ing between  the  negligence  of  the  defendant  and  the  result  or  loss, 
the  defendant's  negligence  is  not  a  proximate  or  directly  contribut- 
ing cause.  If  the  plaintiff'  is  not  at  fault,  and  the  negligence  of 
the  defendant  was  one  of  the  proximate  or  directly  contributing 
causes,  the  defendant  is  liable  for  the  loss,  without  reference  to 
other  proximate  or  directly  contributing  causes,  where  they  do  not 
intervene  between  the  negligence  of  the  defendant  and  the  result 
or  loss.  A  proximate  cause  is  one  that  leads  to  or  produces,  or 
directly  contributes  to  producing,  the  result  or  loss.  If  the  loss 
is  not  such  as  would  likely  or  probably  result  from  the  negligence 
of  the  defendant,  he  is  not  liable,  since  he  can  ordinarily  be  held 
responsible  only  for  the  probable  results  of  his  negligence  which 
he  should  have  foreseen.     *     *     * 

In  an  action  in  tort  against  a  telegraph  company  for  the  breach 
of  a  public  duty  in  negligently  transmitting  an  incorrect  copy  of 
a  message  delivered  to  it  for  transmission,  the  damages  that  can 
be  recovered  are  for  the  loss  or  injury  sustained  by  the  plaintiff 
as  a  proximate  consequence  of  the  defendant's  negligent  act,  which 
consequence  the  parties  contemplated  or  should  have  contemplated 
as  probably  to  follow  from  a  breach  of  the  duty.  An  act  is  a  proxi- 
mate cause  when  it  leads  to  or  produces,  or  contributes  directly  to 
producing,  a  result.  When  a  result  might  have  been  reasonabl\' 
expected  as  likely  or  probably  to  directly  follow  the  performance 
or  nonperformance  of  an  act,  the  party  ])erforming  or  failing  to 
perform  the  act  is  responsible  for  the  loss  to  another  resulting 
proximately  from  the  performance  or  nonperformance  of  the 
act.     *     *     * 


234  DAMAGES   IN   ACTIONS   AGAINST   TELEGRAPH   COMPANIES 

It  appears  that  in  this  case  the  McFadden  Agency  would  have 
been  obliged  under  the  contract  with  the  plaintiff  to  take  175  bales 
of  cotton  at  10  cents  per  pound  if  the  defendant  had  correctly  trans- 
mitted the  message  it  received  from  plaintiff  for  transmission.  Be- 
cause of  the  negligence  of  the  defendant  in  transmitting  the  mes- 
sage incorrectly,  the  McFadden  Agency  was  obliged  to  take  only 
125  bales  of  cotton  at  10  cents  a  pound,  and  consequently  such 
negligence  is  the  proximate  cause  of  the  loss  to  the  plaintiff  of  Yi 
cent  a  pound  on  50  bales  of  cotton  which  sold  for  95-^  cents  per 
pound  the  best  market  price  ;  and  from  the  allegations  of  the  dec- 
laration and  the  proofs  it  appears  that  such  loss  is  one  that  the 
parties  knew  or  had  reason  to  know  would  probably  follow  from 
an  incorrect  transmission  of  the  message.  If  the  defendant's  neg- 
ligence in  the  performance  of  its  duty  was  a  proximate  cause  of 
the  loss  to  the  plaintiff  and  the  plaintiff  is  not  at  fault,  he  may  re- 
cover for  the  loss  sustained  that  the  parties  contemplated  or  under 
the  circumstances  should  have  contemplated  as  likely  and  probably 
to  result  from  such  negligence. 

It  is  urged  that  the  plaintiff  cannot  recover  damages  in  excess 
of  the  toll  collected,  because  it  is  not  shown  that  the  error  in  the 
transmission  of  the  message  was  the  proximate  cause  of  the  loss, 
as  it  does  not  appear  that  plaintiff  "made  any  attempt  to  secure 
a  better  price  for  this  cotton,  or  that  he  offered  the  same  to  any 
other  person,  or  that  he  could  not  by  holding  it  have  obtained  a 
better  price."  The  contract  of  plaintiff'  with  the  McFadden  Agency 
was  that  the  agency  would  take  and  receive  from  plaintiff  all  the 
cotton  he  could  buy  at  10  cents  per  pound  upon  a  basis  of  middling 
cotton,  upon  the  plaintiff  reporting  by  wire  to  said  agency  the  num- 
ber of  bales  so  bought  on  said  day.  The  loss  to  the  plaintiff  could 
not  have  been  avoided,  because  the  agency  was  not  bound  to  take 
more  cotton  than  was  reported  to  it  by  telegram,  and,  as  the  mar- 
ket declined,  a  sale  to  others  at  10  cents  per  pound  was  impracti- 
cable, and  the  50  bales  were  sold,  at  the  best  market  price  for  9]^ 
cents  per  pound.  The  plaintiff"  was  not  required  to  hold  the  50 
bales  for  a  rise  in  the  market,  but  he  had  a  right  to  expect  the 
defendant  to  properly  perform  its  duty  of  correctly  transmitting 
the  telegram,  so  as  to  bind  the  McFadden  Agency  to  take  the  entire 
175  bales  at  that  day's  price,  even  if  the  market  declined ;  but  as 
the  message  was  incorrectly  transmitted,  and  as  the  McFadden 
Agency  was  bound  to  take  and  did  take  at  10  cents  per  pound  only 
the  lesser  number  of  bales  stated  in  the  telegram  as  received  by 
it,  the  loss  to  the  plaintiff  by  the  refusal  of  the  McFadden  Agency 
to  take  at  the  given  price  more  than  the  125  bales  stated  in  the 
message  received  was  caused  directly  by  the  failure  of  the  telegraph 
company  to  correctly  transmit  the  message.  The  difference  in  the 
price  was  not  within  the  control  of  the  plaintiff. 

The  message  contained  no  element  of  speculation  or  contingency. 


NOTICE   OF   PURPOSE   AND   IMPORTANCE   OF   MESSAGE  235 

The  plaintiff  was  not  buying  for  speculation,  but  bought  at  a  stated 
price  for  another,  who  was  to  take  at  that  price  all  the  cotton  re- 
ported by  wire  that  day  pursuant  to  an  agreement.  A  correct  re- 
port was  filed  for  transmission  by  the , defendant  telegraph  com- 
pany, but  the  company  incorrectly  transmitted  it.  The  plaintiff' 
would  have  had  a  right  to  hold  the  IMcFadden  Agency  to  take  the 
175  bales  at  10  cents  per  pound,  notwithstanding  a  decline  in  the 
market  price,  if  a  correct  copy  of  the  message  filed  had  been  trans- 
mitted and  delivered,  and  no  loss  to  plaintiff  would  have  resulted. 
But  the  message  was  not  correctly  transmitted  by  the  defendant 
telegraph  company,  as  it  reported  125  bales,  instead  of  175  bales. 
The  McFadden  Agency  was  not  bound  to  take  at  10  cents  per 
pound  any  more  cotton  than  was  reported  to  it  by  wire  that  day, 
and  as  the  market  declined  >4  cent  a  pound,  and  plaintiff  was 
paid  only  9^4  cents  per  pound  for  50  bales,  the  same  being  then 
the  highest  market  price,  loss  resulted  to  the  plaintiff  directly  from 
failure  of  the  defendant  telegraph  company  to  correctly  transmit 
the  message.  This  loss  was  one  that  the  parties  could  and  should 
have  known,  from  the  telegram  and  other  facts  known  to  the  com- 
pany, would  probably  result  from  the  negligence  of  the  defendant. 
The  amount  of  recovery  is  the  difference  between  the  price  the 
McFadden  Agency  would  have  paid  the  plaintiff  for  the  50  bales 
of  cotton  if  the  message  had  been  correctly  transmitted  and  the 
highest  market  price  paid  the  plaintiff  for  the  50  bales  of  cotton. 
See  Thompson  v.  Western  U.  Tel.  Co.,  64  Wis.  531,  25  N.  W.  789, 
54  Am.  Rep.  644;  Manville  v.  Western  Union  Tel.  Co.,  37  Iowa. 
214,  18  Am.  Rep.  8;  Western  Union  Tel.  Co.  v.  Nye  &  Schneider 
Grain  Co.,  70  Neb.  251,  97  N.  W.  305,  63  L.  R.  A.  803;  Reed  v. 
Western  Union  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  34  L.  R.  A. 
492,  58  Am.  St.  Rep.  609;  Western  Union  Tel.  Co.  v.  Haman,  2 
Tex.  Civ.  App.  100,  20  S.  W.  1133;  Western  Union  Tel.  Co.  v. 
Spivey,  83  S.  W.  364,  98  Tex.  308.  There  is  no  showing  that  the 
plaintiff  did  not  act  in  good  faith  and  get  all  that  could  have  been 
obtained  from  the  sale  of  the  50  bales  of  cotton  left  on  his  hands 
by  reason  of  the  incorrect  transmission  of  the  message.  On  the 
contrary,  it  is  shown  that  the  50  bales  were  sold  for  the  best  market 
price. 

It  is  contended  that  the  terms  of  the  message  did  not  indicate 
that  the  damages  claimed  were  in  the  contemplation  of  the  par- 
ties. The  declaration  alleges  that  the  defendant  telegraph  com- 
pany well  knew  that  the  McFadden  Agency  was  engaged  in  dealing 
in  cotton  and  that  the  ])lainliff  had  been  engaged  in  shipj^ng  cotton 
to  and  buying  cotton  for  said  agency.  It  is  also  shown  in  evidence 
that  the  agent  of  the  telegraph  company  was  also  the  agent  of  the 
railroad  company;  that  he  had  transmitted  similar  messages  daily, 
and  he  had  to  sign  bills  of  lading  for  the  railroad.  It  also  appears 
that  this   agent   knew  the   business  of  the  plaintiff  with   the  Mc- 


236  DAMAGES   IN  ACTIONS   AGAINST   TELEGRAPH   COMPANIES 

Faclden  Agency,  as  to  which  messages  had  been  sent  and  bills  of 
lading  signed  by  the  agent.  It  is  a  matter  of  common  knowledge 
that  the  price  of  cotton  fluctnates.  The  company  appears  to  have 
well  known  of  the  buying  and  shipping  of  cotton  by  the  plaintiff 
for  the  agency.  The  telegram  was  addressed  to  the  agency,  and 
its  terms  indicated  its  importance  and  probable  reference  to  ship- 
ment of  cotton  about  which  defendant  knew. 

The  terms  of  the  message  and  the  circumstances  known  to  the 
company  when  the  message  was  presented  for  transmission  were 
reasonably  sufficient  for  the  defendant  to  contemplate  therefrom 
that  the  losses  sustained  by  the  plaintiff  would  probably  result  from 
a  negligent  transmission  of  the  message.  It  was  not  essential  that 
the  particular  loss  sustained  was  contemplated,  but  the  company 
is  liable  if  the  loss  sustained  should  have  been  contemplated  as  a 
probable  and  proximate  result  of  the  negligence.  Jones  on  Tele- 
graphs and  Telephones,  §^  519-529;  Western  Union  Tel.  Co.  v. 
Edsall,  74  Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep.  835. 

Under  the  circumstances  the  terms  of  the  message  were  suffi- 
cient to  put  the  defendant  upon  notice  that  matters  of  considerable 
value  were  involved,  and  it  was  bound  to  exercise  care  accordingly. 
Western  Union  Tel.  Co.  v.  Edsall,  supra.  If  nothing  of  value  was 
involved,  the  defendant  was  by  law  held  to  a  proper  discharge  of 
its  duty  by  transmitting  and  delivering  a  correct  copy  of  the  mes- 
sage received  by  it  for  transmission.  The  knowledge  of  the  de- 
fendant's agent  of  the  plaintiff's  business  and  the  terms  of  the  mes- 
sage amply  indicated  its  importance.  The  damage  here  alleged  is 
the  proximate  result  of  defendant's  negligence,  and  the  law  im- 
poses liability  for  such  negligence.  See  Jones  on  Telegraphs  and 
Telephones,  §  538.  The  charge  numbered  2,  requested  by  defend- 
ant, was  properly  refused. 

The  decline  in  the  market  price  of  cotton  was  not  an  independent 
efficient  cause  intervening  between  the  negligence  of  the  defend- 
ant and  the  plaintiff's  loss.  If  the  message  had  been  correctly 
transmitted,  the  decline  in  the  market  price  of  cotton  would  not 
have  resulted  in  loss  to  the  plaintiff.  Even  if  the  decline  in  the 
price  were  a  directly  contributing  cause  of  the  loss,  the  correct 
transmission  of  the  message  would  have  avoided  a  loss,  notwith- 
standing the  decline  in  the  price.  Therefore  the  negligence  of  the 
defendant  was  at  least  a  proximate  cause  of  the  loss.     *     *     * 

It  does  not  appear  from  the  allegations  or  the  proofs  that  the 
injury  complained  of  was  the  result  of  any  independent  intervening 
cause.  No  wrongdoing,  negligence,  or  lack  of  good  faith,  on  the 
part  of  the  plaintiff  appears.  The  defendant  telegraph  company 
failed  to  properly  perform  its  duty  by  not  transmitting  a  correct 
copy  of  the  message  received  by  it  for  transmission.  Such  failure 
has  resulted  in  loss  to  the  plaintiff,  without  his  fault  and  without 
the  intervention  of  any  independent  cause;    and  the  defendant  is 


CIPHER   MESSAGES  237 

therefore  liable  in  damages  to  the  amount  of  the  loss  directly  sus- 
tained by  the  plaintiff,  that  should  probably  have  resulted  and  did 
result  from  the  defendant's  negligence.  Damages  under  this  rule 
have  been  adjudicated  to  the  plaintiff.  *  *  *  Xhe  judgment  is 
affirmed. 


IV.  Same — Cipher  Messages  ^ 


PRIMROSE  V.  WESTERN  UNION  TELEGRAPH  CO. 

(Supreme  Court  of  United  States,  1S94.    154  U.  S.  1,  14  Sup.  Ct.  109S,  38  L. 

Ed.  SS3.) 

In  error  to  the  circuit  court  of  the  United  States  for  the  eastern 
■district  of  Pennsylvania, 

This  was  an  action  on  the  case,  brought  January  25,  1888,  by 
Frank  J.  Primrose,  a  citizen  of  Pennsylvania,  against  the  Western 
Union  Telegraph  Company,  to  recover  damages  for  a  negligent 
mistake  of  the  defendant's  agents  in  transmitting  a  telegraphic 
message.  On  June  16,  1887,  the  plaintiff  wrote  and  delivered  to  the 
defendant,  at  Philadelphia,  for  transmission  to  his  agent,  William 
B.  Toland,  at  Ellis,  in  the  state  of  Kansas,  a  message:  "To  Wm. 
B.  Toland,  Ellis,  Kansas.  Despot  am  exceedingly  busy  bay  all 
kinds  quo  perhaps  bracken  half  of  it  mince  moment  promptly  of 
purchases.    Frank  J.  Primrose.'' 

On  the  evening  of  the  same  day,  an  agent  of  the  defendant  de- 
livered to  Toland,  at  Waukeney,  upon  a  blank  of  the  defendant 
company,  the  message  in  this  form :  "To  W.  B.  Toland,  Waukeney, 
Kansas.  Destroy  am  exceedingly  busy  buy  all  kinds  quo  perhaps 
bracken  half  of  it  mince  moment  promptly  of  purchase.  Frank  J. 
Primrose." 

The  difference  between  the  message  as  sent  and  as  delivered  is 
shown  below,  where  so  much  of  the  message  sent  as  was  omitted 
in  that  delivered  is  in  brackets,  and  the  words  substituted  in  the 
message  delivered  are  in  italics:  "[Despot]  Destroy  am  exceed- 
ingly busy  [bay]  buy  all  kinds  quo  perhaps  bracken  half  of  it  mince 
moment  promptly  of  purchase [s]." 

By  the  private  cipher  code  made  and  used  by  the  plaintiff'  and 
Toland,  the  meaning  of  these  words  was  as  follows:  "Yours  of  the 
[fifteenth]  seventeenth  received;  am  exceedingly  busy;  [I  have 
bought]  buy  all  kinds,  five  hundred  thousand  pounds;  perhaps  we 
have  .sold  half  of  it;  wire  when  you  do  anything;  send  samples 
immediately,  promptly  of  [purchases]  purchase." 

7  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Kd.)  §  120. 


238  DAMAGES   IN  ACTIONS  AGAINST  TELEGRAPH   COMPANIES 

The  plaintiff  testified  that  he  then  was,  and  for  many  years  had 
been,  engaged  in  the  business  of  buying  and  selling  wool  all  over 
the  country,  and  had  employed  Toland  as  his  agent  in  that  busi- 
ness and  early  in  June,  1887,  sent  him  out  to  Kansas  and  Colorado, 
with  instructions  to  buy  50,000  pounds,  and  then  to  await  orders 
from  him  before  buying  more ;  that,  before  June  12th,  Toland 
bought  50,000  pounds,  and  then  stopped  buying;  and  that  he  had 
sent  many  telegraphic  messages  to  Toland  during  that  month  and 
previously,  using  the  same  code. 

The  defendant's  agent  at  Philadelphia,  called  as  a  witness  for 
the  plaintiff,  testified  that  he  sent  this  message  for  the  plaintiff, 
and  knew  that  he  was  a  dealer  in  wool,  and  that  Toland  was  with 
him,  but  in  what  capacity  he  did  not  know ;  that  he  had  frequently 
sent  messages  for  him,  and  considered  him  one  of  his  best  cusomers 
during  the  wool  season. 

The  plaintiff'  also  introduced  evidence  tending  to  show  that 
Toland,  upon  receiving  the  message  at  Waukeney,  made  purchases 
of  about  300,000  pounds  of  wool ;  and  that  the  plaintiff,  in  settling 
with  the  sellers  thereof,  suffered  a  loss  of  upward  of  $20,000. 

The  circuit  court,  following  White  v.  Telegraph  Co.,  5  McCrary, 
103,  14  Fed.  710,  and  Jones  v.  Telegraph  Co.  (C.  C.)  18  Fed.  717, 
ruled  that  there  was  no  evidence  of  gross  negligence  on  the  part 
of  the  defendant;  and  that,  as  the  message  had  not  been  repeated, 
the  plaintiff,  by  the  terms  printed  upon  the  back  of  the  message, 
and  referred  to  above  his  signature  on  its  face,  could  not  recover 
more  than  the  sum  of  $1.15,  which  he  had  paid  for  sending  it.  The 
plaintiff  not  claiming  that  sum,  the  court  directed  a  verdict  for  the 
defendant,  and  rendered  judgment  thereon.  The  plaintiff  tendered 
a  bill  of  exceptions,  and  sued  out  this  writ  of  error. 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion  of 
the  court.®     *     *     * 

Under  any  contract  to  transmit  a  message  by  telegraph,  as  under 
any  other  contract,  the  damages  for  a  breach  must  be  limited  to 
those  which  may  be  fairly  considered  as  arising  according  to  the 
usual  course  of  things  from  the  breach  of  the  very  contract  in 
question,  or  which  both  parties  must  reasonably  have  understood 
and  contemplated,  when  making  the  contract,  as  likely  to  result 
from  its  breach.  This  was  directly  adjudged  in  Telegraph  Co.  v. 
Hall,  124  U.  S.  444,  8  Sup.  Ct.  "^77,  31  L.  Ed.  479. 

In  Hadley  v.  Baxendale  (decided  in  1854)  9  Exch.  345,  ever  since 
considered  a  leading  case  on  both  sides  of  the  Atlantic,  and  ap- 
proved and  followed  by  this  court  in  Telegraph  Co.  v.  Hall,  above 
cited,  and  in  Howard  v.  Manufacturing  Co.,  139  U.  S.  199,  206, 
207,  11  Sup.  Ct.  500,  35  L.  Ed.  147;  Baron  Alderson  laid  down,  as 
the  principles  by  which  the  jury  ought  to  be  guided  in  estimating 

8  The  statement  is  abridged  from  that  in  the  official  report  and  part  of 
the  opinion  is  omitted. 


CIPHER    MESSAGES 


239 


the  damages  arising  out  of  any  breach  of  contract,  the  following: 
"Where  two  parties  have  made  a  contract  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive  in  re- 
spect of  such  breach  of  contract  should  be  such  as  may  fairly  and 
reasonably  be  considered  either  arising  naturally — i.  e.  according 
to  the  usual  course  of  things — from  such  breach  of  contract  itself, 
or  such  as  may  reasonably  be  supposed  to  have  been  in  the  con- 
templation of  both  parties,  at  the  time  they  made  the  contract,  as 
the  probable  result  of  the  breach  of  it.  Now,  if  the  special  circum- 
stances under  which  the  contract  was  actually  made  were  communi- 
cated by  the  plaintiffs  to  the  defendants,  and  thus  known  to  both 
parties,  the  damages  resulting  from  the  breach  of  such  a  contract, 
which  they  would  reasonably  contemplate,  would  be  the  amount 
of  injury  which  would  ordinarily  follow  from  a  breach  of  contract 
under  these  special  circumstances  so  known  and  communicated. 
But,  on  the  other  hand,  if  these  special  circumstances  were  wholly 
unknown  to  the  party  breaking  the  contract,  he,  at  the  most,  could 
only  be  supposed  to  have  had  in  his  contemplation  the  amount 
which  would  arise  generally,  and  in  the  great  multitude  of  cases 
not  affected  by  any  special  circumstances,  from  such  a  breach  of 
contract."    9  Exch'  354,  355.     *     *     * 

In  Telegraph  Co.  v.  Gildersleve,  already  referred  to,  which  was 
an  action  by  the  sender  against  a  telegraph  company  for  not  de- 
livering this  message  received  by  it  in  Baltimore,  addressed  to 
brokers  in  New  York  "Sell  fifty  (50)  gold,"  Mr.  Justice  Alvey, 
speaking  for  the  court  of  appeals  of  Maryland,  and  applying  the 
rule  of  Hadley  v.  Baxendale,  above  cited,  said:  "While  it  was 
proved  that  the  dispatch  in  question  would  be  understood  among 
brokers  to  mean  fifty  thousand  dollars  in  gold,  it  was  not  shown, 
nor  was  it  put  to  the  jury  to  find,  that  the  appellant's  agents  so 
understood  it,  or  whether  they  understood  it  at  all.  'Sell  fifty  gold' 
may  have  been  understood  in  its  literal  import,  if  it  can  be  properly 
said  to  have  any,  or  was  as  likely  to  be  taken  to  mean  fifty  dollars 
as  fifty  thousand  dollars  by  those  not  initiated ;  and,  if  the  measure 
of  responsibility  at  all  depends  upon  a  knowledge  of  the  special 
circumstances  of  the  case,  it  would  certainly  follow  that  the  nature 
of  this  dispatch  should  have  been  communicated  to  the  agent  at 
the  time  it  was  offered  to  be  sent,  in  order  that  the  appellant  might 
have  observed  the  precautions  necessary  to  guard  itself  against 
the  risk.  But  without  reference  to  the  fact  as  to  whether  the  ap- 
pellant had  knowledge  of  the  true  meaning  and  character  of  the 
dispatch,  and  was  thus  enabled  to  contemplate  the  consequences 
of  a  breach  of  the  contract,  the  jury  were  instructed  that  the  ap- 
pellee was  entitled  to  recover  to  the  full  extent  of  his  loss  by  the 
decline  in  gold.  In  thus  instructing  the  jury,  we  think  the  court 
committed  error,  and  that  its  ruling  should  be  reversed."  29  Md. 
232,  251,  96  Am.  Dec.  519. 


240  DAMAGES   IN  ACTIONS  AGAINST  TELEGRAPH   COMPANIES 

In  Baldwin  v.  Telegraph  Co.,  which  was  an  action  by  the  sender^ 
against  the  telegraph  company  for  not  delivering  this  message, 
^'Telegraph  me  at  Rochester  what  that  well  is  doing,"  Mr.  Justice 
Allen,  speaking  for  the  court  of  appeals  of  New  York,  said:  "The 
message  did  not  import  that  a  sale  of  any  property  or  any  business 
transaction  hinged  upon  the  prompt  delivery  of  it,  or  upon  any 
answer  that  might  be  received.  For  all  the  purposes  for  which 
the  plaintiffs  desired  the  information,  the  message  might  as  well 
have  been  in  a  cipher  or  in  an  unknown  tongue.  It  indicated  noth- 
ing to  put  the  defendant  upon  the  alert,  or  from  which  it  could  be 
inferred  that  any  special  or  peculiar  loss  would  ensue  from  a  non- 
delivery of  it.  Whenever  special  or  extraordinary  damages,  such 
as  would  not  naturally  or  ordinarily  follow  a  breach,  have  been 
awarded  for  the  nonperformance  of  contracts,  whether  for  the  sale 
or  carriage  of  goods  or  for  the  delivery  of  messages  by  telegraph, 
it  has  been  for  the  reason  that  the  contracts  have  been  made  with 
reference  to  peculiar  circumstances  known  to  both,  and  the  partic- 
ular loss  has  been  in  the  contemplation  of  both,  at  the  time  of 
making  the  contract,  as  a  contingency  that  might  follow  the  non- 
performance." "The  dispatch  not  indicating  any  purpose  other 
than  that  of  obtaining  such  information  as  an  owner  of  property 
might  desire  to  have  at  all  times,  and  without  reference  to  a  sale, 
or  even  a  stranger  might  ask  for  purposes  entirely  foreign  to  the 
property  itself,  it  is  very  evident  that,  whatever  may  have  been 
the  special  purpose  of  the  plaintiffs,  the  defendant  had  no  knowl- 
edge or  means  of  knowledge  of  it,  and  could  not  have  contemplated 
either  a  loss  of  a  sale,  or  a  sale  at  an  undervalue,  or  any  other 
disposition  of  or  dealing  with  the  well  or  any  other  property,  as 
the  probable  or  possible  result  of  a  breach  of  its  contract.  The 
loss  which  would  naturally  and  necessarily  result  from  'the  failure 
to  deliver  the  message  would  be  the  money  paid  for  its  transmis- 
sion, and  no  other  damages  can  be  claimed  upon  the  evidence  as 
resulting  from  the  alleged  breach  of  duty  by  the  defendant."  45 
N.  Y.  744,  749,  750,  752,  6  Am.  Rep.  165.  See,  also.  Hart  v.  Cable 
Co.,  86  N.  Y.  633. 

The  supreme  court  of  Illinois,  in  Tyler  v.  Telegraph  Co.,  above 
cited,  took  notice  of  the  fact  that  in  that  case  "the  dispatch  dis- 
closed the  nature  of  the  business  as  fully  as  the  case  demanded." 
60  III.  434,  14  Am.  Rep.  38.  And  in  the  recent  case  of  Cable  Co. 
V.  Lathrop  the  same  court  said :  "It  is  clear  enough  that,  applying 
the  rule  in  Hadley  v.  Baxendale,  supra,  a  recovery  cannot  be  had 
for  a  failure  to  correctly  transmit  a  mere  cipher  dispatch,  unex- 
plained, for  the  reason  that  to  one  tmacquainted  with  the  meaning 
of  the  ciphers  it  is  wholly  unintelligible  and  nonsensical.  An  op- 
erator would  therefore  be  justifiable  in  saying  that  it  can  contain 
no  information  of  value  as  pertaining  to  a  business  transaction,  and 
a  failure  to  send  it  or  a  mistake  in  its  transmission  can  reasonably 


CIPHER   MESSAGES  241 

result  in  no  pecimiarv  loss."     131  111.  575,  585,  23  N.  E.  583,  585, 
7  L.  R.  A.  474,  19  Am.  St.  Rep.  55. 

The  same  rule  of  damages  has  been  applied,  upon  failure  of  a 
telegraph  company  to  transmit  or  deliver  a  cipher  message,  in  one 
of  the  Wisconsin  cases  cited  by  the  plaintiff,  and  in  many  cases  in 
other  courts.  Candee  v.  Telegraph  Co.,  34  Wis.  471,  479-481,  17 
Am.  Rep.  452:  Beaupre  v.  Telegraph  Co.,  21  Minn.  155;  Mackay 
V.  Telegraph  Co.,  16  Nev.  222;  Daniel  v.  Telegraph  Co.,  61  Tex. 
452,  48  Am.  Rep.  305 ;  Cannon  v.  Telegraph  Co.,  100  N»  C.  300,  6 
S.  E.  731.  6  Am. -St.  Rep.  590;  Telegraph  Co.  v.  Wilson,  32  Fla. 
527,  14  South.  1,  22  L.  R.  A.  434,  37  Am.  St.  Rep.  125;  Behm  v. 
Telegraph  Co.,  8  Biss.  131,  Fed.  Cas.  No.  1,234;  Telegraph  Co.  v. 
Martin,  9  111.  App.  587;  Abeles  v.  Telegraph  Co.,  37  Mo.  App.  554; 
Kinghorne  v.  Telegraph  Co.,  18  U.  C.  Q.  B.  60,  69. 

In  the  present  case  the  message  was,  and  was  evidently  intended 
to  be,  wholly  unintelligible  to  the  telegraph  company  or  its  agents. 
They  were  not  informed,  by  the  message  or  otherwise,  of  the  na- 
ture, importance,  or  extent  of  the  transaction  to  which  it  related, 
or  of  the  position  which  the  plaintiff  would  probably  occupy  if  the 
message  were  correctly  transmitted.  Mere  knowledge  that  the 
plaintiff  was  a  wool  merchant,  and  that  Toland  was  in  his  employ, 
had  no  tendency  to  show  what  the  message  was  about.  According 
to  any  understanding  which  the  telegraph  company  and  its  agents 
had,  or  which  the  plaintiff  could  possibly  have  supposed  that  they 
had,  of  the  contract  between  these  parties,  the  damages  which  the 
plaintiff  seeks  to  recover  in  this  action,  for  losses  upon  wool  pur- 
chased by  Toland,  were  not  such  as  could  reasonably  be  considered, 
either  as  arising,  according  to  the  usual  course  of  things,  from  the 
supposed  breach  of  the  contract  itself,  or  as  having  been  in  tlie 
contemplation  of  both  parties,  when  they  made  the  contract,  as  a 
probable  result  of  a  breach  of  it. 

In  any  view  of  the  case,  therefore,  it  was  rightly  ruled  by  the 
circuit  court  that  the  plaintiff  could  recover  in  this  action  no  more 
than  the  sum  which  he  had  paid  for  sending  the  message.  Judg- 
ment affirmed. 

Mr.  Chief  Justice  FulIvKr  and  Mr.  Justice  Hari^an  dissented. 
CooLET  Dam. — 16 


242  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 
I.  Damages  in  Statutory  Action — Pecuniary  Loss  * 


FLORIDA  CENTRAL  &  P.  R.  CO.  v.  FOXWORTH. 

(Suprone  Court  of  Florida.  1899.     41  Fla.  1.  25  South.  33S,  79  Am.  St.  Rep. 

149.) 

Action  by  Sarah  A.  Foxworth  against  the  Florida  Central  & 
Peninsular  Railroad  Company  for  damages  for  the  death  of  plain- 
tiff's husband  alleged  to  have  been  caused  by  the  negligence  of 
the  railroad  company.  There  was  a  verdict  for  plaintiff  for  $25,000. 
Defendant's  motion  for  new  trial  was  denied  on  plaintiff's  enter- 
ing a  remittitur  for  $20,000,  and  judgment  entered  for  plaintiff. 
Defendant  appeals. 

Carter,  j.2  *  *  *  gy  ^\^q  common  law  no  damages  were 
recoverable  for  the  death  of  a  human  being.  We  are,  therefore, 
without  precedents  as  to  the  measure  of  damages  in  cases  of  this 
character,  other  than  those  based  upon  the  construction  of  statutes 
varying  in  their  language.  A  great  majority  of  the  courts  of  this 
country  have  held  that  in  actions  of  this  character  the  loss  of  the 
spciety  of  the  deceased  cannot  be  considered  in  estimating  dam- 
ages. The  basis  for  this  array  of  precedents  is  the  opinion  of  the 
English  court,  construing  Lord  Campbell's  Act,  in  Blake  v.  Rail- 
way Co.,  16  Jur.  562.  We  have  examined  a  multitude  of  these 
cases,  and  in  none  of  them  have  we  found  any  reason  given  for 
disallowing  this  element,  except  in  Railroad  Co.  v.  Zebe,  33  Pa.  318; 
and  the  decision  in  this  case  is  confessedly  based  upon,  and  the 
reasons  given  are  practically  those  of,  the  English  case.  In  the 
Pennsylvania  case  the  main  question  considered  was  whether  dam- 
ages for  mental  suffering  or  wounded  feelings  could  be  allowed, 
and  incidentally  the  court  held  that  loss  of  society  falls  within  the 
same  category  with  mental  suffering,  and  should  be  disallowed. 
The  English  case,  though  confined  entirely  to  the  question  of  men- 
tal suffering,  has  been  generally  cited  as  authority  for  excluding 
damages  for  loss  of  the  society  and  protection  of  a  husband.  The 
reasoning  of  that  decision  is  based  upon  four  propositions :  First, 
the  title  of  the  act,  "An  act  for  compensating  the  families  of  per- 
sons killed  by  accident,"  not  "for  solacing  their  wounded  feelings" ; 
second,  the  provision  requiring  the  jury  to  divide  between  the  per- 
sons for  whose  benefit  the  action  was  brought  the  amount  recov- 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  130-132. 

2  Tart  of  tbe  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


•DAMAGES   IN    STATUTORY   ACTION — PECUNIARY   LOSS  243 

ored  in  such  shares  as  they  thought  proper,  and  the  impracticability 
of  estimating  and  dividing  the  damages  for  mental  anguish  of  and 
between  the  numerous  persons  for  whose  benefit  the  action  is 
brought;  third,  because  the  language  of  the  act  seemed  more  ap- 
propriate to  a  loss  of  which  some  estimate  might  be  made  by  cal- 
culation than  an  indefinite  sum,  independent  of  all  pecuniary  esti- 
mate, to  soothe  the  feelings;  and,  fourth,  "if  a  jury  were  to  pro- 
ceed to  estimate  the  relative  degrees  of  mental  anguish  of  a  widow 
and  twelve  children  from  the  death  of  the  father  of  the  family,  a 
serious  danger  might  arise  of  damages  being  given  to  the  ruin  of 
the  defendants."  In  the  Pennsylvania  case  it  is  said  that  such  dam- 
ages are  speculative  and  fanciful,  and  it  is  there  asserted  that  the 
great  merit  of  the  English  rule  is  that  "it  is  one  of  equality,  com- 
pensating the  rich  and  the  poor,  the  refined  and  the  cultivated,  and 
those  less  so,  by  the  simple  standard  of  pecuniary  loss." 

While  our  statute  has  several  features  in  common  with  Lord 
Campbell's  Act,  it  is  essentially  different  in  many  important  par- 
ticulars. Unlike  the  English  statute,  it  is  not  one  for  "compensat- 
ing families,"  but  one  "fixing  the  liability  of  persons  and  corpora- 
tions for  damages  resulting  from  death,"  etc.  Our  statute,  unlike 
the  English  one,  by  giving  a  right  of  action  to  the  administrator 
of  the  deceased,  imposes  the  liability  whether  there  be  a  family 
to  compensate  or  not.  Its  efifect  was  to  abrogate  the  common-law 
rule,  for  which,  if  any  reason  ever  existed,  the  world  has  long 
since  outgrown  it,  denying  damages  for  human  life,  and  to  affix  a 
penalty  by  an  award  of  pecuniary  damages  for  a  careless  or  wrong- 
ful act  resulting  in  another's  death.  In  authorizing  suits  to  enforce 
this  liability,  our  act  gives  the  right  to  those  who  are  supposed  to 
suffer  most  by  the  death  of  the  deceased,  but  on  no  account  does 
the  action  fail  for  want  of  a  person  to  sue,  as  with  Lord  Campbell's 
Act.  Other  points  of  dissimilarity  between  them  are:  Under  the 
English  statute  the  suit  is  brought  by  the  administrator  for  the 
benefit  of  the  beneficiaries,  while  the  beneficiaries  sue  directly  un- 
der our  statute.  Under  the  English  statute  the  jury  are  required 
to  apportion  or  divide  the  recovery  among  all  the  beneficiaries, 
while  under  ours  no  division  is  made  by  the  jury;  and,  indeed,  if 
there  be  a  husband  or  wife  surviving,  the  exclusive  right  of  action 
inures  to  him  or  her  without  reference  to  other  members  of  the 
family.  And  so  with  minor  children  and  dependents,  the  existence 
of  a  higher  class  of  persons  authorized  to  sue  in  the  order  named 
in  the  statute  debars  all  other  classes  from  any  right  of  action  them- 
selves, or  from  participation  in  the  recovery  by  the  higher  class. 
Duval  v.  Hunt,  34  Fla.  85,  15  South.  876.  In  the  Duval-Hunt  Case 
we  held  that,  where  the  suit  was  brought  by  dependents,  their  re 
covery  was  limited  to  an  amount  ef|ual  to  tiie  present  worth  of  a 
future  support  for  plaintiff,  estimated  upon  the  basis  therein  men- 
tioned. 


244  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

This  view  is  entirely  consistent  with,  and  plainly  conformable 
to,  the  nature  and  extent  of  the  damages  proximately  suffered  by 
one  dependent  upon  the  deceased  for  a  support  only,  because  he 
has  lost  nothing  b}^  the  death  of  the  deceased  except  the  support 
which  he  would  have  received  had  deceased  lived;  but  it  was  not 
thereby  determined,  as  insisted  upon  by  the  appellant,  that  the  same 
rule  for  assessing  damages  for  a  dependent  would  apply  to  a  suit 
by  the  wife,  or  any  other  person  authorized  by  the  statute  to  sue. 
Our  statute  requires  the  jury  to  give  such  damages  "as  the  party 
entitled  to  sue  may  have  sustained  by  reason  of  the  death  of  the 
party  killed" ;  not  such  damages  as  the  deceased  might  have  re- 
covered had  he  lived,  as  contended  by  appellee.  It  is  clear,  there- 
fore, that  a  widow  is  not  entitled  to  recover  for  the  pain  and  suffer- 
ing of  the  deceased,  because  that  is  not  a  damage  sustained  by  her, 
but  by  the  deceased,  and  dies  with  his  person,  unless  an  adminis- 
trator can  recover  therefor,  in  a  suit  by  him  under  the  statute,  as 
to  which  we  express  no  opinion.  The  statute  failing  to  declare  what 
particular  elements  enter  into  the  damages  sustained  by  a  widow 
by  reason  of  the  death  of  her  husband,  and  the  common  law  fur- 
nishing no  guide  for  estimating  damages  sustained  by  one  from 
the  death  of  another,  we  must  necessarily  have  recourse  to  the 
general  rules  governing  the  assessment  of  damages  in  other  actions, 
and  among  the  first  we  find  that  ''the  object  of  awarding  damages 
is  to  give  compensation  for  pecuniary  loss;  that  is,  to  put  the 
plaintiff"  in  the  same  position,  so  far  as  money  can  do  it,  as  he  would 
have  been  if  *  *  *  the  tort  had  not  been  committed."  1  Sedg. 
Meas.  Dam.  §  30.  Another  is  that  the  damage  to  be  recovered 
must  always  be  the  natural  and  proximate  consequence  of  the  act 
complained  of.     1  Sedg.  Meas.  Dam.  §  122. 

Applying  these  principles  to  this  case,  it  is  proper  to  inquire,  who 
is  the  plaintiff?  Of  what  wrongful  act  does  she  complain?  What 
has  been  the  natural  and  proximate  consequence  to  her;  or,  stated 
differently,  what,  has  she  directly  lost  by  reason  of  this  wrongful 
act?  The  answers  are  not  difffcult  to  give.  She  is  a  widow  com- 
plaining of  the  death  of  her  husband  by  the  wrongful  act  of  an- 
other, and  she  has  lost  all  the  rights  and  benefits  which  she  would 
have  had  a  legal  claim  to  receive  during  the  probable  joint  lives  of 
herself  and  husband,  and  those  accruing  after  his  death,  had  she 
survived  him.  Chief  among  those  accruing  to  her  during  their 
joint  lives  are  the  comfort,  society,  protection,  and  support  of  the 
husband.  They  are  all  eloquently  expressed  in  that  portion  of 
the  marriage  ceremony  constituting  the  contract  between  them, 
whereby  the  man  is  required  "to  love  her,  comfort  her,  honor  and 
keep  her  in  sickness  and  in  health."  There  can  be  no  question 
that  the  wife's  right  to  the  society  of  the  husband  is  a  recognized 
legal  right,  as  much  so  as  the  right  to  his  support.  When  one  of 
the  parties  dies  by  the  wrongful  act  of  another,  the  consequences 


DAMAGES    IN    STATrXOUY   ACTION — rECUNIART    LOSS  245 

are  not  merely  the  annulment  of  a  contract,  or  the  ending  of  a 
partnership  organized  for  pecuniary  gain,  but  the  dissolution  of 
the  only  status  known  to  the  law  in  which  the  companionship  and 
society  of  the  parties  to  each  other  is  so  essential  that  the  relation 
will  be  annulled  if  that  society  be  willfully  withdrawn.  The  word 
"husband"  or  "wife,"  disassociated  from  all  idea  of  companionship, 
has  but  an  empty  sound. 

The  Pennsylvania  court  in  a  later  case  (Railroad  Co.  v.  Good- 
man, 62  Pa.  329)  recognizes  the  injustice  of  denying  compensation 
for  companionship  of  husband  and  wife  in  cases  of  this  character 
by  holding  that  the  husband's  damages  are  to  be  "measured  by  the 
value  of  her  services  as  a  wife  or  companion;  *  *  *  that  the 
pecuniary  loss  was  to  be  measured  by  the  nature  of  the  service, 
characterized  as  it  was  by  the  relation  in  wdiich  the  parties  stood 
to  each  other.  Certainly,  the  service  of  a  wife  is  pecuniarily  more 
valuable  than  that  of  a  mere  hireling.  The  frugality,  industry, 
usefulness,  attention,  and  tender  solicitude  of  a  wife  and  the  mother 
of  children  surely  make  her  services  greater  than  those  of  an  ordi- 
nary servant,  and  therefore  worth  more.  These  elements  are  not 
to  be  excluded  from  the  consideration  of  a  jury  in  making  a  mere 
money  estimate  of  value."  The  comfort,  society,  and  protection 
of  a  husband  are  no  more  fanciful  or  speculative  than  the,  fru- 
gality, industry,  usefulness,  attention,  and  tender  solicitude  of  a 
wife;  and  the  one  can  be  as  well  compensated  by  that  simple  stand- 
ard of  pecuniary  loss  by  which  the  damages  of  the  rich  and  the 
poor,  the  refined  and  cultivated,  and  those  less  so  are  measured, 
as  the  other.  The  right  of  a  husband  to  recover  damages  for  be- 
ing deprived  of  the  society  of  his  wife  by  reason  of  injuries  in- 
flicted by  the  negligence  of  another  has  been  often  recognized  at 
common  law,  though  not  in  cases  involving  death  ;  and  it  has  never 
been  considered  that  the  damages  on  this  account  were  either  spec- 
ulative, fanciful,  or  liable  to  bankrupt  a  defendant.  Jones  v.  Rail- 
road Co.,  40  Hun  (N.  Y.)  349;  Ainley  v.  Railway  Co.,  47  Hun  (N. 
Y,)  206;  Blair  v.  Railroad  Co.,  89  Mo.  334,  1  S.  W.  367;  Furnish 
V.  Railway  Co.,  102  Mo.  669,  15  S.  W.  315,  22.  Am.  St.  Rep.  800. 

In  the  following  cases  loss  of  society  has  been  held  a  proper  ele- 
ment for  consideration  in  estimating  damage  under  various  stat- 
utes in  this  class  of  cases,  some  of  them  confining  such  element  to 
actions  by  a  husband  or  widow:  Railroad  Co.  v.  Freeman,  97  Ala. 
289,  11  South.  800;  Munro  v.  Reclamation  Co.,  84  Cal.  515,  24  Pac. 
303,  18  Am.  St.  Rep.  248;  Pepper  v.  Pacific  Co.,  105  Cal.  389,  38 
Pac.  974;  Petric  v.  Railroad  Co.,  29  S.  C.  303,  7  S.  E.  515;  Balti- 
more &  O.  R.  Co.  v.  Slate,  24  Md.  271 ;  Webb  v.  Railway  Co..  7 
Utah,  17,  24  Pac.  616;  Railroad  Co.  v.  Noell's  Adm'r,  Zl  Grat. 
(Va.)  394;  Simmons  v.  McConncll,  86  Va.  494,  10  S.  E.  838;  Wells 
v.  Railway  Co.,  7  Utah,  482,  27  Pac.  688;  Hyde  v.  Railway  Co.,  7 
Utah,  356,  26  Pac.  979. 


246  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

The  case  of  Webb  v.  Railway  Co.,  7  Utah,  17,  24  Pac.  616,  has 
been  cited  to  sustain  the  proposition  that  loss  of  society  is  not  an 
element  of  damage  in  this  class  of  cases.  That  case  holds  that  a 
mother  is  entitled  to  recover  only  her  pecuniary  loss,  and  not  for 
mental  pain  and  suffering  caused  by  the  death  of  a  child,  in  an 
action  for  damages  under  a  statute  somewhat  similar  to  Lord 
Campbell's  Act,  but  it  is  there  admitted  that  the  word  "pecunia- 
ry," in  this  connection,  "is  not  construed  in  any  very  strict  sense, 
and  the  tendency  is  to  still  greater  liability,  and  to  include  every 
element  of  injury  that  may  be  deemed  to  have  a  pecuniary  value, 
although  this  value  may  not  be  susceptible  of  positive  proof,  and 
can  only  be  vaguely  estimated.  It  may  include  the  loss  of  nurture, 
of  the  intellectual,  moral,  and  physical  training  which  a  mother 
only  can  give  to  children ;  *  *  *  the  loss  of  the  society  of  a 
near  relative.''  The  same  court  has  held  that  while  nothing  is  to 
be  allowed  for  mental  suffering,  or  as  a  solace  for  feelings,  the  jury 
may  allow  damages  to  a  widow  and  daughter  for  being  deprived 
of  the  support,  care,  nurture,  companionship,  assistance,  and  pro- 
tection of  the  deceased  (Wells  v.  Railway  Co.,  7  Utah,  482,  27  Pac. 
688)  ;  and  in  an  action  by  parents,  that  the  jury  may  take  into  con- 
sideration the  loss  to  the  parents  of  the  society  of  their  child 
(Hyde  v.  Railway  Co.,  7  Utah,  356,  26  Pac.  979). 

Under  our  statute  we  hold  that  in  estimating  the  pecuniary  loss 
sustained  by  a  widow  in  consequence  of  the  death  of  her  husband 
the  jury  may  properly  take  into  consideration  the  loss  of  the  com- 
fort, protection,  and  society  of  the  husband  in  the  light  of  all  the 
evidence  in  the  case  relating  to  the  character,  habits,  and  conduct 
of  the  husband  as  husband,  and  to  the  marital  relations  between 
the  parties  at  the  time  of  and  prior  to  his  death.  The  sixth  in- 
struction on  behalf  of  the  plaintiff  was  properly  given,  and  the 
court  correctly  refused  the  fourteenth  instruction  requested  by 
defendant,  because  it  excluded  the  elements  of  "comfort,  protec- 
tion, and  society"  from  the  consideration  of  the  jury.     *     *     * 

It  is  a  difficult  matter  to  lay  down  general  rules  by  which  to 
estimate  damages  in  this  class  of  cases.  Those  which  occur  to 
us  as  being  applicable  to  this  case,  so  far  as  we  can  judge  from 
the  evidence  in  the  record,  are  as  follows :  In  estimating  the  pe- 
cuniary loss  sustained  by  the  widow,  the  jury  may  properly  take 
into  consideration  her  loss  of  the  comfort,  protection,  and  society 
of  the  husband  in  the  light  of  all  the  evidence  in  the  case  relating 
to  the  character,  habits,  and  conduct  of  the  husband  as  husband, 
and  to  the  marital  relations  between  the  parties  at  the  time  of  and 
prior  to  his  death ;  and  they  may  also  consider  his  services  in  as- 
sisting her  in  the  care  of  the  family,  if  any;  but  the  widow  is  not 
entitled  to  recover  for  her  mental  anxiety  or  distress  over  the  death 
of  her  husband,  nor  for  his  mental  or  physical  suffering  from  the 
result   of  the   injury.     She  is  also   entitled   to   recover   reasonable 


EXEMPLARY    DAMAGES  247 

compensation  for  the  loss  of  support  which  her  husband  was  legal- 
ly bound  to  give  her,  based  upon  his  probable  future  earnings  and 
other  acquisitions,  and  the  station  or  condition  in  society  which 
he  would  probably  have  occupied  according  to  his  past  history  in 
that  respect,  and  his  reasonable  expectations  in  the  future;  his 
earnings  and  acquisitions  to  be  estmiated  upon  the  basis  of  the  de- 
ceased's age,  health,  business  capacity,  habits,  experience,  energy, 
and  his  present  and  future  prospects  for  business  success  at  the 
time  of  his  death,— all  these  elements  to  be  based  upon  the  joint 
lives  of  herself  and  husband.  She  is  also  entitled  to  compensation 
for  loss  of  whatever  she  might  reasonably  have  expected  to  re- 
ceive in  the  way  of  dower  or  legacies  from  her  husband's  estate,  in 
case  her  life  expectancy  be  greater  than  his.  The  sum  total  of  all 
these  elements  to  be  reduced  to  a  money  value,  and  its  present 
worth  to  be  given  as  damages.  *  *  *  Within  these  limits  the  jury 
exercise  a  reasonable  discretion  as  to  the  amount  to  be  awarded,  based 
upon  the  facts  in  evidence  and  the  knowledge  and  experience  pos- 
sessed by  them  in  relation  to  matters  of  common  knowledge  and  in- 
formation.    *     *     * 

The  ninth  instruction  for  plaintiff  was  erroneous,  because  it  au- 
thorized the  jury  to  give  as  damages  the  value  of  the  life  of  the 
deceased,  and  gave  them  too  much  discretion  in  estimating  the 
damages.  Duval  v.  Hunt,  34  Fla.  85,  15  South.  876.  Her  recov- 
ery is  not  the  value  of  the  deceased's  life  generally,  but  the  value 
of  that  life  to  her,  or  the  loss  sustained  by  her  from  the  premature 
death  of  the  deceased,  as  shown  by  the  proofs.  The  judgment  is 
reversed,  and  a  new  trial  granted. 


II,  Exemplary  Damages 


ATCHISON,  T.  &  S.  F.  RY.  CO.  v.  TOWNSEND. 
(Supreme  Court  of  Kansas,  1905.     <1  Kan.  524,  81  Pac.  205.) 

Johnston,  C.  J.*  This  was  an  action  by  George  W.  Townsend 
to  recover  damages  from  the  Atchison,  Topeka  &  Santa  Fe  Rail- 
way Company  for  the  wrongful  death  of  his  wife,  occasioned,  as 
he  alleges,  by  the  culpable  negligence  of  the  railway  compa- 
ny. *  *  *  Townsend  recovered  $3,850,  and  $1,000  of  this 
amount  was  exemplary  damages. 

It  is  first  contended  that,  under  section  422  of  the  Code,  Town- 
send  was  not  entitled  to  recover  damages  for  the  wrongful  death 

3  For  (lisfusHion  of  i)iin(iiilcs,  see  Hale  on  Damages  (2cl  Kd.)  §  133. 

♦  riiil  (if  tlio  oi)iiiii>ii  is  <jiiiill('il. 


248  DAMAGES   FOR   DEATH   BY   AVRONGFUL   ACT 

of  his  wife.  It  provides  that  "the  damages  cannot  exceed  ten 
thousand  dollars,  and  must  inure  to  the  exclusive  benefit  of  the 
w^idow  and  children,  if  any,  or  next  of  kin,  to  be  distributed  in  the 
same  manner  as  personal  property  of  the  deceased."  It  is  insisted 
that  a  husband  is  not  "next  of  kin"  of  his  wife,  and  that  kinship 
means  relationship  by  blood,  and  not  by  marriage.  The  reference 
in  the  section  itself  to  the  statute  of  descents  and  distributions  fur- 
nishes the  rule  for  interpreting  the  phrase  "next  of  kin."  Under 
that  statute  the  husband  and  wife  inherit  from  each  other,  and  it 
has  already  been  held,  in  Railway  Co.  v.  Ryan,  62  Kan.  682,  64 
Pac.  603,  that  the  phrase  as  used  in  the  statute  for  the  recovery  of 
damages  for  wrongfully  causing  a  death,  means  those  kin  who  in- 
herit from  the  deceased  under  the  statute  of  descents  and  distribu- 
tions.    *     *     * 

The  court  advised  the  jury  that  punitive  damages  might  be  al- 
lowed in  the  case  if  the  jury  found  that  the  company  was  guilty  of 
negligence  of  a  gross,  reckless,  and  willful  character,  and  the  find- 
ings disclose  that  such  damages  were  awarded  to  the  extent  of  $1,- 
000.  Assuming  that  the  negligence  was  gross  and  wanton,  it  is 
the  opinion  of  the  court  that  exemplary  damages  may  not  be  al- 
lowed in  such  cases.  Recoveries  for  wrongful  death  could  not  be 
had  under  the  common  law.  The  right  to  maintain  such  actions  is 
given  by  statute,  and  damages  can  only  be  recovered  to  the  extent 
which  the  statute  allows.  There  is  a  division  of  judicial  opinion  on 
the  subject  of  the  allowance  of  exemplary  damages  for  injuries 
resulting  in  death,  but  in  1,3  Cyc.  365,  where  the  cases  are  col- 
lected, it  is  said  that  "the  rule  is  well  established  that,  under  stat- 
utes giving  a  right  of  action  for  death  by  wrongful  act,  exemplary 
or  punitive  damages  cannot  be  recovered,  unless  expressly  provided 
for  in  the  statute  giving  the  right  of  action.''  Our  statute  pro- 
vides :  "When  the  death  of  one  is  caused  by  the  wrongful  act  or 
ornission  of  another,  the  personal  representatives  of  the  former  may 
maintain  an  action  therefor  against  the  latter,  if  the  former  might 
have  maintained  an  action  had  he  lived  against  the  latter  for  an 
injury  for  the  same  act  or  omission.  The  action  must  be  com- 
menced within  two  years.  The  damages  cannot  exceed  ten  thou- 
sand dollars,  and  must  inure  to  the  exclusive  benefit  of  the  widow 
and  children,  if  any,  or  next  of  kin,  to  be  distributed  in  the  same 
manner  as  personal  property  of  the  deceased."     Civ.  Code,  §  422. 

It  will  be  observed  that  no  reference  is  made  to  damages  by  way 
of  punishment  and  the  limitation  placed  upon  the  amount  of  re- 
covery is  somewhat  inconsistent  with  the  allowance  of  exemplary 
damages.  No  more  than  $10,000  can  be  recovered  for  the  wrong- 
ful death  of  any  person,  and  if  the  pecuniary  loss  of  the  plaintiff 
equaled  that  sum,  and  that  amount  was  awarded,  of  course  no 
exemplary  damages  could  be  given.  The  precise  point,  although 
considered  in  ^a  number  of  cases,  has  not  been  expressly  decided. 


EXK-MTLAKY    DAMAGES  249 

The  question  was  sug^gested  in  Railway  Co.  v.  Cutter,  19  Kan. 
83,  but  the  court,  finding  it  unnecessary  for  the  determination  of  the 
case  expressly  declined  to  decide  it.  The  character  of  the  damages 
recoverable  in  this  class  of  cases  was  considered  in  Railway  Co. 
V.  Brown,  26  Kan.  458,  where  it  was  said :  "We  cannot  agree  that 
the  theory  of  the  law  is  to  punish  for  the  mere  negligent  destruc- 
tion of  life,  and  the  law  of  compensation  means  that  no  more  should 
be  given  to  the  next  of  kin  than  they  probably  would  have  received 
from  the  decedent  if  his  life  had  not  been  taken  away."  *  *  * 
In  Railway  Co.  v.  Ryan,  62  Kan.  687,  64  Pac.  604,  the  nature  of 
the  action  was  under  discussion,  and  it  was  said :  "An  action  of 
the  character  of  this  one  is  purely  compensatory.  It  is  brought  to 
recover  for  pecuniary  loss  consequent  upon  the  death." 

Although  the  allowance  of  exemplary  damages  was  not  directly 
drawn  in  question  in  the  cases  cited  the  view  taken  by  the  court 
as  to  the  nature  of  the  action  indicates  quite  clearly  that  nothing 
can  be  allowed  by  way  of  solatium  or  as  punishment.  In  most  of 
the  states  the  courts  have  declined  to  allow  exemplary  damages. 
For  instance,  they  have  been  rejected  in  Minnesota,  Oregon,  In- 
diana, New  York,  Michigan,  South  Carolina,  Wisconsin,  Iowa, 
Georgia,  Pennsylvania,  Illinois,  North  Dakota,  South  Dakota,  Cal- 
ifornia, Maine,  Washington,  Texas,  Colorado,  Alabama,  and  Ohio. 
Such  damages  have  been  allowed  in  the  states  of  Connecticut,  Colo- 
rado (under  an  early  statute),  Alabama  (under  a  "homicide  act"), 
Kentucky,  Virginia,  West  Virginia,  Tennessee,  Missouri,  Wash- 
ington, Texas,  and  South  Carolina.  Exemplary  damages  were  al- 
lowed in  Colorado  under  a  statute  giving  damages  in  general 
terms  but,  on  a  slight  modification  of  the  statute,  the  court  re- 
fused to  allow  exemplary  damages.  Mofifatt  v.  Tenney,  17  Colo. 
189,  30  Pac.  348.  In  the  state  of  Alabama,  under  "An  act  to  pre- 
vent homicides,"  the  damages  recoverable  were  treated  as  entirely 
punitive,  and  hence  exemplary  damages  were  awarded.  But  under 
the  "employer's  act,"  giving  damages  for  the  injuries  resulting 
from  the  death  of  employes,  it  was  held  that  exemplary  damages 
could  not  be  recovered.  Railroad  Co.  v.  Orr,  91  Ala.  548,  8  South. 
360;  Railway  Co.  v.  Trammell,  93  Ala.  350,  9  South.  870.  In  Ken- 
tucky (one  of  the  states  in  which  such  damages  are  allowed)  it  is 
expressly  provided  in  the  statute  that  punitive  damages  may  be  re- 
covered. The  same  is  true  of  Washington  and  New  Mexico.  In 
Texas,  under  a  statute  providing  in  general  terms  that  damages 
might  be  allowed,  exemplary  damages  were  refused ;  but,  under  a 
recent  constitutional  provision,  exemplary  damages  arc  expresslv 
authorized.  Under  a  general  statute  of  South  Carolina  giving 
damages,  the  courts  declined  to  allow  exemplary  damages.  Gar- 
rick  V.  Railroad  Co.,  53  S.  C.  448,  31  S.  E.  334,  69  Am.  St.^  Rep.  874; 
Nohrden  v.  Railway  Co.,  54  S.  C.  492,  32  S.  E.  524.  I'.ui  the  Legis- 
lature of  that  slate  recently  amended  the  law  su  as  to  authorize 


250  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

exemplary  damages.  In  the  states  of  California  and  South  Dakota 
exemplary  damages  were  expressly  given  by  statute,  but  since  that 
time  the  statutes  have  been  changed,  eliminating  that  kind  of  dam- 
ages. Lange  v.  Schoettler,  115  Cal.  388,  47  Pac.  139;  Smith  v. 
Railroad  Co.,  6  S.  D.  583,  62  N.  W.  967,  28  L.  R.  A.  57Z. 

Washington  is  classed  among  the  states  which  allow  exemplary 
damages,  and  while  the  statutory  provision  that  "damages,  pe- 
cuniary or  exemplary,  as  under  all  circumstances  of  the  case  may 
seem  just,"  are  permitted,  yet  the  court  held  in  Walker  v.  McNeill, 
17  Wash.  582,  50  Pac.  518,  that  the  recovery  was  limited  to  pecunia- 
ry damages.  In  the  early  case  of  Spokane,  etc.,  Co.  v.  Hoefer,  2 
Wash.  45,  25  Pac.  1072,  11  L.  R.  A.  689,  26  Am.  St.  Rep.  842,  the 
doctrine  of  exemplary  damages  was  held  to  be  unsound  in  prin- 
ciple. Under  a  section  of  a  statute  of  that  state  providing  that 
the  father  may  maintain  an  action  for  the  injur}^  or  death  of  a 
child,  it  was  held  that  exemplary  damages  could  not  be  recovered. 
Atrops  V.  Costello,  8  Wash.  149,  35  Pac.  620.  It  thus  appears  that, 
with  a  few  exceptions,  exemplary  damages  are  not  allowed,  unless 
expressly  provided  for  by  Constitution  or  statute.  In  some  courts 
the  holding  is  based  to  some  extent  upon  the  peculiar  language  of 
the  statute  giving  damages,  but  generally  it  is  placed  on  the  nature 
of  this  new  statutory  right  of  action.  Until  the  statute  was  passed, 
no  one  could  recover  for  the  death  of  a  relative.  The  first  statute, 
known  as  "Lord  Campbell's  Act,"  was  the  pattern  upon  which  the 
American  statutes  were  framed.  It  was  early  decided  in  England 
that  the  relatives  of  the  deceased  could  not  claim  any  damages 
which  might  have  been  claimed  by  the  person  injured  if  death  had 
not  resulted,  but  could  only  obtain  compensation  for  the  pecuniary 
loss  which  they  sustained  in  his  death.  This  theory,  it  was  held, 
excluded  damages  for  the  pain  and  suffering  of  the  deceased,  or 
for  the  mental  anguish  or  distress  of  his  relatives,  or  for  the  loss  to 
them  of  the  society  of  the  deceased,  and,  the  damages  being  sim- 
ply compensatory,  that  they  necessarily  excluded  punitive  damages. 

In  adopting  the  statute,  most  of  the  jurisdictions  have  adopted 
the  interpretation  which  the  courts  had  given  to  it,  and  from  the 
earliest  cases  this  court  has  held  that  the  damages  recoverable 
were  for  the  pecuniary  loss  sustained  by  the  next  of  kin  of  the  de- 
ceased. This  theory  necessarily  excludes  any  award  as  solatium 
for  the  next  of  kin,  or  as  punishment  for  the  defendant.  It  fol- 
lows that  the  judgment  must  be  modified  by  striking  out  the  award 
for  exemplary  damages,  and  in  all  other  respects  it  will  be  affirmed. 


KO    DAMAGES    FOli   INJURY    TO    DECEASED  251 


III.  No  Damages  for  Injury  to  Deceased  ' 


DWYER  V.  CHICAGO,  ST.  P.,  M.  &  O.  RY.  CO. 

(Supreme  Court  of  Iowa.  lfc«92.    S-4  Iowa.  479,  51  N.  W.  244,  35  Am.  St  Rep. 

322.) 

Action  for  personal  injury.  Judgment  for  plaintiff,  and  the  de- 
fendant appealed. 

Granger,  J.°  The  plaintiff  is  the  administrator  of  the  estate  of 
Ann  Dwyer,  deceased,  who  was  on  the  9th  day  of  July,  1889,  struck 
by  defendant's  cars,  as  a  result  of  which  she  died  about  30  days 
thereafter.  The  petition  specifies  the  injuries  sustained,  and  adds: 
"All  of  which  caused  her  great  pain  and  suffering  for  a  period  of 
about  thirty  days,  when  she  died  from  such  injuries."  A  motion  to 
strike  out  the  words  as  to  pain  and  suffering  was  overruled,  and 
the  court  instructed  the  jury  that,  if  it  found  for  plaintiff,  to  allow  a 
■'reasonable  compensation  for  pain  and  suffering."  The  jury  re- 
turned a  general  verdict  for  plaintiff  for  $3,000,  and  specially  found 
that  $2,300  of  the  amount  was  for  "pain  and  suffering,"  and  $700 
"as  damages  to  the  estate."  An  assignment  brings  in  question  the 
correctness  of  the  court's  action  in  permitting  the  jur}/  to  consider 
pain  and  suffering  as  an  element  of  damage.  The  action  was  com- 
menced after  the  death  of  plaintiff's  intestate.  If  the  action  had 
been  commenced  in  her  life-time,  it  is  unquestioned  that  pain  and 
suffering  caused  by  the  injury  would  have  been  a  proper  element 
of  damage;  and  this  would  be  true  if,  after  the  commencement  of 
the  action,  she  had  died,  and  her  administrator  had  been  substi- 
tuted as  party  plaintiff',  and  prosecuted  the  suit  to  judgment.  Mul- 
downey  v.  Railway  Co.,  36  Iowa,  462. 

We  come,  then,  to  the  important  inquiry  if  such  damages  are 
permissible  in  such  a  case,  where  the  action  is  commenced  by  the 
administrator.  The  only  authority  for  maintaining  such  an  ac- 
tion by  the  legal  representative  is  by  virtue  of  the  statute.  At  the 
common  law,  the  cause  of  action  abated  with  the  death  of  the 
injured  party.  The  law  authorizing  the  action  is  found  in  Code, 
§  2525.  "All  causes  of  action  shall  survive  and  may  be  brought 
notwithstanding  the  death  of  the  person  entitled  or  liable  to  the 
same."  We  are  cited  to  no  case,  in  this  or  any  other  state,  where 
the  rule  contended  for  by  appellee,  and  allowed  by  the  district 
court,  has  been  sustained.  It  is  claimed,  however,  that  the  reason 
tor  this,  as  to  other  states,  is  because  of  the  peculiarity  of  the  stat- 
utes under  which  such  actions  are  permitted  to  survive.     In  sev- 

5  F'rr  flisfiission  of  i)riiKii)l<'s.  see  Hale  ou  Damages  (2d  Ed.)  g  134. 
«  Part  of  tbe  opiiiii^ii  is  oniiUud. 


2o2  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

eral  cases  this  court  has  expressed  its  view  as  to  the  measure  of 
damages  in  such  cases,  and  in  such  a  way  that  appellant  regards 
the  law  on  this  point  as  settled  in  its  favor,  while  appellee  regards 
the  language  thus  relied  upon  as  merely  incidental  to  other  points 
determined,  and  in  no  way  decisive  of  the  question  now  before  us. 
It  is  true  that  the  precise  question  now  before  us  was  not  involved 
for  determination  in  any  of  the  Iowa  cases  cited,  and  the 'language 
relied  upon  by  appellant  has  been  used  incidentally  in  the  discus- 
sion of  other  questions ;  but  it  is  not  to  be  understood,  because  of 
this,  that  such  language  is  without  value  in  our  deliberations  on 
this  question ;  for  much  of  the  language  so  used  is  in  regard  to 
questions  so  allied  to  this  in  its  legal  significance  as  to  make  them 
determinable  upon  quite  similar  considerations.  For  instance,  the 
rule  as  to  the  measure  of  damage  in  cases  of  this  kind  has  been 
considered,  and,  with  the  point  before  us  in  view,  a  rule  excluding 
such  damage  has  been  adopted. 

In  Rose  v.  Railway  Co.,  39  Iowa,  246,  it  is  said :  "The  action  is 
brought  by  the  administrator  for  the  injury  to  the  estate  of  the 
deceased  sustained  in  his  death.  There  is  therefore  no  basis  for 
damage  for  pain  and  suffering.  *  *  *  Compensation  for  the 
pecuniary  loss  to  his  estate  is  alone  to  be  allowed."  See,  also,  Don- 
aldson V.  Railway  Co.,  18  Iowa,  at  page  290,  87  Am.  Dec.  391,  and 
Muldowney  v.  Railway  Co.,  36  Iowa,  at  page  468.  In  the  latter 
case  the  action  was  commenced  by  the  injured  party,  who  died 
pending  the  suit,  and  his  administrator  was  substituted;  and  it 
was  held  that  pain  and  suffering  were  proper  elements  of  damage 
because  of  the  action  having  been  commenced  by  the  injured  party; 
but  the  court  guards  the  rule  by  saying:  "A  dift"erent  rule  would 
obtain  if  the  action  had  been  commenced  after  his  death."  It  is 
thought  that  the  expression  may  be  accounted  for  on  the  theory 
that  the  case  was  determined  under  a  different  statute.  Rev.  St. 
§  3467,  under  which  the  action  arose,  is  as  follows:  "No  cause  of 
action  ex  delicto  dies  with  either  or  both  of  the  parties,  but  the 
prosecution  thereof  may  be  commenced  or  continued  by  or  against 
their  personal  representatives." 

With  reference  to  the  particular  matter  under  consideration,  it 
is  difficult  to  trace  a  distinction  between  the  statutes.  The  one 
says,  in  eft'ect,  that  such  causes  of  action  shall  survive  the  party, 
and  the  other  that  it  does  not  die  with  the  party.  The  effect  of 
each  is  to  create  a  survival,  and  the  one,  as  plainly  as  the  other, 
contemplates  the  existence  of  the  cause  of  action  before  the  death. 
It  is  not  the  effect  of  either,  as  seems  to  be  thought  by  appellee, 
to  create  a  cause  of  action  because  of  the  death.  The  statutes  deal 
with  the  "cause  of  action,"  and  not  with  the  rt:le  of  damage  to 
be  applied.  In  fixing  the  damage,  we  look  to  the  wrong  to  be  rem- 
edied;  to  the  injury  to  be  repaired.  If  the  action  is  brought  by 
the  injured  party,  the  law  attempts  to  remedy  the  wrong  to  him 


NO    DAMAGES   FOK    INJURY    TO    DECEASED  253 

— not  specifically  to  his  estate — and  that  may  include  loss  of  prop- 
erty, time,  and  that  bodily  ease  and  comfort  to  which  he  is  entitled 
as  against  the  wrong-doers.  If  the  action  is  brought  to  repair  an 
injury  to  his  estate,  the  law  looks,  in  fixing  the  rule  of  damage,  to 
how  the  estate  is  aftected  by  the  act,  and  attempts  to  repair  the 
injury.  Loss  of  time  and  expenses  paid,  as  a  result  of  the  wrong, 
presumably  lessen  the  estate ;  but  bodily  pain  and  suffering  in  no 
manner  affect  it.  It  is  an  item  of  damage  peculiar  to  the  person, 
and  not  to  pecuniary  or  property  rights.  Under  our  statute,  these 
damages  belong  "to  the  estate  of  the  deceased.''  Code,  §  2526. 
This  distinction  is  maintained  throughout  all  the  cases  and  au- 
thorities that  have  come  to  our  notice.  This  court  has  repeatedly 
said  that  these  actions  are  for  "injury  to  the  estate."  See  cases 
cited  supra:  Rose  v.  Railway  Co.,  Donaldson  v.  Railway  Co.,  Mul- 
downey  v.  Railway  Co.  Mr.  Sutherland,  in  his  work  on  Damages 
(volume  3,  p.  282),  speaking  in  general  of  these  statutes  of  survival 
of  actions,  says :  "The  measure  of  damages  is  not  the  loss  or  suf- 
fering of  the  deceased,  but  the  injury  resulting  from  his  death  to 
his  family. 

It  is  only  for  pecuniary  injuries  that  this  statutory  right  of  ac- 
tion is  given.  Although  it  can  be  maintained  only  in  cases  in 
which  an  action  could  have  been  brought  by  the  deceased  if  he  had 
survived,  damages  are  given  on  dift'erent  principles  and  for  dift'er- 
ent  causes.  Neither  the  pain  and  suffering  of  the  deceased,  nor 
the  grief  and  wounded  feelings  of  his  surviving  relatives,  can  be 
taken  into  account  in  the  estimate  of  damages.''  In  Railway  Co. 
v.  Barron,  5  Wall.  90,  18  L.  Ed.  591,  a  like  case,  it  is  said,  speaking 
of  the  wife  or  next  of  kin,  who,  under  the  Illinois  statutes  are  the 
beneficiaries  in  such  a  case:  "They  are  confined  to  the  pecuniary 
injuries  resulting  to  the  wife  and  next  of  kin ;  whereas  if  the  de- 
ceased had  survived,  a  wider  range  of  inquiry  would  have  been  ad- 
mitted. It  would  have  embraced  personal  suft'ering  as  well  as 
pecuniary  loss,  and  there  would  have  been  no  fixed  limitation  as  to 
the  amount."  The  language  of  the  Illinois  statute  is  different  in 
phraseology  from  ours,  but  not  to  the  extent  of  inducing  a  different 
rule  in  this  respect.  Under  the  statute  of  Minnesota,  so  similar  to 
ours  as  to  justify  the  same  rule  as  to  these  damages,  it  is  held  that 
"no  compensation  can  be  given  *  *  *  for  the  pain  and  suffer- 
ing of  the  deceased."  Hutchins  v.  Railway  Co.,  44  Minn.  5,  46  N. 
W.  79. 

We  conclude,  without  doubt,  that  the  district  court  erred  in  its 
ruling  on  the  motion  and  the  instruction  to  the  jury.     *     *     * 

The  cause  is  remanded  to  the  district  court,  with  instructions  to 
deduct  from  the  judgment  entered  the  $2,300  allowed  for  pain  and 
suffering,  and  give  judgment  for  the  balance.  Modified  and  af- 
firmed. 


254  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 


IV.  Prospective  Pecuniary  Losses — Prospective  Benefits' 


McKAY  V.  NEW  ENGLAND  DREDGING  CO. 

(Supreme  Judicial  Court  of  Maine,  1S99.    92  Me.  454,  43  Atl.  29.) 

This  was  an  action  brought  by  John  McKay,  as  administrator, 
against  the  New  England  Dredging  Company,  to  recover  damages 
for  the  loss  of  the  life  of  his  intestate  by  reason  of  the  alleged  neg- 
ligence of  the  defendant  corporation.  The  action  is  brought,  un- 
der the  provisions  of  chapter  124  of  the  Public  Laws  of  1891,  for 
the  benefit  of  the  father  and  mother ;  they  being  the  sole  heirs  of 
the  intestate.     The  verdict  was  for  the  plaintiff  for  $2,000. 

At  the  conclusion  of  the  charge  of  the  presiding  justice,  counsel 
for  the  defendant  requested  the  following  instruction  to  the  jury, 
which  was  refused:  "That,  the  plaintiff  not  having  proved  facts 
and  circumstances  sufficient  to  enable  the  jury  to  return  a  verdict 
which  would  approximate  reasonable  certainty,  the  plaintiff  is  en- 
titled to  recover  only  nominal  damages.''  To  the  refusal  to  so 
instruct  the  jury,  the  defendant  brings  exceptions. 

Emery,  J.  The  jury  found  that  the  death  of  the  plaintiff's  intes- 
tate, William  McKay,  was  "caused  by  the  w^rongful  act,  neglect,  or 
default"  of  the  defendant,  according  to  the  act  of  1891,  c.  124.  This 
finding  does  not  seem  to  us  so  unmistakably  wrong  as  to  require  us 
to  set  it  aside. 

The  question  of  the  amount  of  damages  to  be  recovered  requires 
more  consideration.  The  action  is  "for  the  exclusive  benefit,''  not 
of  the  estate,  but  of  the  father  and  mother  of  the  deceased;  they 
being  his  only  heirs,  he  having  left  no  widow  nor  children.  The 
father  and  mother  are  entitled  to  "a  fair  and  just  compensation,  not 
exceeding  five  thousand  dollars,  wath  reference  to  the  pecuniary 
injuries  resulting  to  them  from  such  death.'' 

The  right  to  any  compensation  is  wholly  created  by  the  statute, 
and  the  amount  of  the  compensation  is  to  be  measured  solely  by 
the  standard  prescribed  by  the  statute.  At  common  law,  in  cases 
like  this,  there  was  no  right  of  action  in  the  widow,  children,  or 
heirs  for  any  compensation.  Our  statute  is  evidently  derived  from 
the  English  statute  of  9  &  10  Vict.  c.  93  [1846],  known  as  "Lord 
Campbell's  Act,''  as  were  similar  statutes  in  others  of  the  United 
States  and  the  Canadian  provinces.  By  some  writers  it  has  been 
suggested  that  these  statutes  are  a  reappearance  of  the  ancient 
weregild — the  compensation  paid  by  a  slayer  to  the  family  or  clan 
of  the  person  slain.     This,  however,  is  purely  fanciful.     The  stat- 

7  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  140. 


PEOSPECTIVE    PECUNIARY    LOSSES  — PROSPECTIVE    BENEFITS        -OO 

t\te  is  to  be  construed  as  a  new  statute,  creating  a  new  right,  and 
not  as  afifirming  or  reviving  an  ancient  right. 

As  to  the  measure -of  damages  under  the  statute,  several  prop- 
ositions are  already  well  established  and  familiar.  No  punitive 
damages  can  be  recovered,  nor  any  damages  by  way  of  penalty. 
No  damages  can  be  recovered  for  any  suffering  by,  nor  injury  to, 
the  deceased  himself,  or  his  estate.  His  creditors  cannot  be  heard 
to  complain  that  his  estate  has  been  diminished  to  their  injury,  nor 
that  they  have  lost  the  chance  that  he  would  have  earned  some- 
thing with  which  to  pay  them.  Njd  damages  can  be  recovered  for 
any  grief,  distress  of  mind,  loss  of  mere  companionship  or  society, 
or  injury  to  the  affections,  suffered  by  the  beneficiaries.  Nor  can 
damages  be  recovered  for  the  value  of  the  life  to  the  deceased,  to 
the  state,  or  to  the  community.  The  injury  for  which  damages 
can  be  recovered  must  be  wholly  to  the  beneficiaries  themselves, 
and  it  is  limited  to  the  pecuniary  eft'ect  of  the  death  upon  them. 

It  does  not  follow,  however,  that  the  death  must  cause  an  actual 
subtraction  from  the  estate  or  income  of  the  beneficiaries,  or  from 
their  earning  power.  It  is  not  necessary  that  the  beneficiaries 
should  have  any  legal  claim  against  or  upon  the  deceased.  They 
have  no  rights,  under  the  statute,  as  creditors.  In  every  person's 
life  are  matters  of  actual  value  to  him,  which  form  no  part  of  his 
estate,  and  have  no  market  value.  The  education  and  training 
which  children  may  reasonably  expect  to  receive  from  a  parent  are 
of  actual  and  commercial  value  to  them,  as  better  fitting  them  to 
obtain  an  income  or  estate.  The  loss  of  that  education  and  train- 
ing through  the  death  of  the  parent  from  the  fault  of  a  defendant 
would  be,  in  the  statute  sense,  a  pecuniary  injury.  So,  the  atten- 
tions and  kindness  of  children  to  parents,  though  adding  nothing 
to  their  estate,  may  add  much  to  the  physical  comfort  or  ease  of 
their  life,  independent  of  the  affections  or  of  the  joy  of  companion- 
ship. The  loss  of  these  might,  under  some  circumstances,  be  a 
pecuniary  injury. 

Of  course,  loss  of  income  or  loss  of  estate  would  be  pecuniary  in- 
juries. So  would  be  the  loss  of  a  reasonable  prospect  of  additional 
income  and  estate  in  the  future.  If  a  son  had  settled  an  annuity 
during  his  own  life  upon  his  parents,  his  death  would  be  a  pecunia- 
ry loss  to  them,  as  well  as  to  his  wife  and  minor  children. 

Generally,  where  there  exists  a  reasonable  probability  of  pe- 
cuniary benefit  to  one  from  the  continuing  life  of  another,  whether 
arising  from  legal  or  family  relations,  the  untimely  extinction  of 
that  life  is  a  i)ecuniary  injury. 

It  is  evident  that  the  pecuniary  damages  to  be  recovered  under 
this  statute  can  never  be  ascertained  with  exactness,  nor  with  any 
satisfactory  degree  of  api)roximation.  Unlike  ordinary  questions 
of  the  legal  measure  of  damages,  this  relates  wholly  to  the  future. 
There  can   never  be  knowledge.     The  conclusion  arrived  at  must 


25G  DAMAGES  FOR  DEATH  BY  WRONGB^UL  ACT 

be  based  on  probabilities  instead  of  facts.  The  only  facts  that  can 
be  ascertained  are  those  which  occurred  before  or  at  the  time  of 
the  death.  From  that  data,  what  would  probably  have  occurred, 
had  not  the  wrongful  act  or  neglect  of  the  defendant  intervened, 
must  be  conjectured  as  carefully  as  possible.  The  circumstances 
of  the  deceased  and  the  beneficiaries  are  to  be  ascertained.  The 
legal  family,  or  other  ties  are  to  be  considered.  The  age,  capacity, 
health,  means,  occupation,  temperament,  habits  and  disposition  of 
the  deceased  and  of  the  beneficiaries  are  material  to  be  known. 
There  is  some  probability  that  these  various  circumstances  shown 
to  be  existing  at  the  time  of  the  death  would  have  continued  in 
more  or  less  degree  had  not  the  death  occurred.  They  would  be 
subject,  however,  to  acceleration,  retardation,  interruption,  and 
even  extinction,  by  other  circumstances,  which  may  possibly  or 
probably,  or  even  surely,  occur  after  the  death.  These  inevitable, 
probable,  and  even  possible  subsequent  circumstances  are  therefore 
to  be  looked  for  and  considered.  Whatever  result  is  arrived  at 
must  be  reached  from  a  careful  balancing  of  the  various  probabili- 
ties. 

It  remains  to  make  the  conjecture,  to  balance  the  probabilities, 
for  this  case.  At  the  time  of  the  death  of  William  McKay,  his 
father  and  mother  were  past  middle  life.  The  mother  had  been 
an  invalid  for  some  six  years,  unable  to  do  any  work  or  to  walk, 
and  for  some  time  had  been  unable  to  feed  herself.  The  father  was 
somewhat  infirm  from  rheumatism,  being  at  times  unable  to  work. 
They  were  too  poor  to  employ  a  nurse,  and  the  mother  was  cared 
for  by  the  father  and  the  two  younger  sons,  aged  15  and  17.  The 
deceased  son  was  aged  23^  years  at  the  time  of  his  death.  He  had 
learned  the  stonecutter's  trade  during  his  minority.  After  arriv- 
ing at  his  majority,  he  worked  at  his  trade  for  the  most  of  his  time 
in  Quincy,  the  home  of  his  parents,  and  turned  all  of  his  earnings 
into  their  home.  He  also  worked  at  his  trade  for  a  little  time  at 
Hallowell  and  at  Leadbetter's  Island,  and  occasionally  sent  home 
little  sums  of  money  to  his  mother.  He  did  not  have  constant  em- 
ployment, but  does  not  appear  to  have  been  lazy  or  unusually  idle. 
He  sought  at  various  places  for  work  at  his  trade,  and,  failing  to 
obtain  that,  he  worked  as  a  laborer  in  the  defendant's  quarry,  where 
he  was  killed.  It  is  not  shown  that  he  sent  home  any  money  while 
in  defendant's  employ.  His  wages  as  laborer  wert  15  cents  an 
hour,  out  of  which  he  had  to  pay  his  board  of  $20  per  month. 
What  wages  he  got  at  his  trade  was  not  shown,  but  the  father  at 
the  same  trade  was  paid  $2  per  day.  The  only  home  the  deceased 
had  was  with  his  parents,  in  Quincy,  to  which  he  seems  to  have 
returned  in  the  intervals  of  employment,  and  paid  his  board  there. 

He  was  of  some  pecuniary  assistance  to  his  parents,  though  evi- 
dently quite  small.  He  rendered  this  assistance  after  he  became 
of  age.     In  view  of  the  increasing  age  and  infirmity  of  his  parents, 


PROSPECTIVE    PECUNIARY    LOSSES — PUOSPECTIVE    BENEFITS         257 

there  is  a  probability  that  he  would  have  continued  to  furnish  more 
or  less  money  or  service  during  their  lives,  according  to  their  needs. 
When  at  home  with  them,  it  is  probable  he  would  have  aided  in 
the  care  of  his  invalid  mother,  and  otherwise  have  aided  his  par- 
ents by  personal  services.  True,  he  might  not.  He  might  have 
died ;  might  have  become  sick,  crippled,  or  dissipated,  and  a  bur- 
den rather  than  a  help  to  his  parents.  He  might  have  married, 
and  this  marriage,  while  it  might  have  brought  to  the  parents  the 
service  and  attention  of  a  daughter,  might,  on  the  other  hand,  have 
absorbed  all  his  earnings.  The  parents  themselves  might  have 
died  the  next  day.  Still,  he  had  a  regular  expectancy  of  life,  and  so 
had  they.  There  was  a  probability  that  things,  for  a  while,  at 
least,  would  continue  somewhat  as  they  were, — that  marriage,  even, 
would  not  end  his  assistance  to  his  parents. 

In  fine,  parents  in  their  condition  would  be  accounted  more  for- 
tunate, pecuniarily,  with  such  a  son  alive  than  with  him  dead.  So 
far  as  their  condition  was  made  less  fortunate,  pecuniarily,  by  the 
wrongful  act  or  default  of  the  defendant,  they  are  entitled  to  re- 
cover enouo^h  damages  to  make  them  "a  fair  and  just  compensa- 
tion.'' Such  damages  would  evidently  be  more  than  nominal,  and^ 
hence  the  defendant's  contention  on  this  point  cannot  be  sustained. 

The  jury  assessed  the  damages  at  $2,000.  This  is  manifestly 
disproportionate  and  extravagant.  Assuming  the  parents  to  have 
been  45  years  old  (there  being  no  direct  statement  of  their  age  in 
the  evidence),  $2,000  would  procure  them  an  annuity  of  nearly  $140 
during  the  life  of  the  survivor.  It  is  not  at  all  probable  that  the 
deceased  would  have  averaged  that  much  each  year  in  contributions 
of  money  and  services.  His  employment  was  not  at  all  constant. 
He  had  to  go  about  seeking  employment,  and  at  the  time  of  his 
death  was  working  as  laborer  at  15  cents  an  hour.  His  expenses 
for  board  at  that  time  were  $20  per  month.  His  yearly  margin 
over  expenses  would  probably  not  have  been  over  $100,  at  the  most. 
It  is  not  to  be  expected,  however,  that  he  would  limit  himself  to 
absolutely  necessary  expenses,  and  send  the  surplus  to  the  parents. 
It  would  be  natural,  and  therefore  probable,  that  he  would  give 
himself  some  indulgences,  especially  as  there  were  two  other  nearly 
grown  sons  with  his  parents. 

In  fine,  we  think  that  $70  per  year  would  be  the  extent  of  any 
probability  of  his  contribution  in  money  and  services  during  the 
lives  of  his  parents.  To  produce  that  sum  as  annuity  for  a  person 
at  the  age  of  45  would  require  somewhat  less  than  $1,000.  The 
chance  that  he  would  have  accumulated  an  estate  which  his  parents 
would  live  to  inherit  is  too  remote  for  consideration. 

But  it  would  not  be  accurate  nor  just  to  assume  tli.it  the  parents 
would  receive  the  value  of  $70  per  year  with  the  regularity  and  cer- 
tainty of  an  annuity  from  a  responsible  annuity  company.     There 

COOI.KY  I)A.\f. — 17 


258  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

were  many  contingencies  threatening  even  that  sum.  Industrial 
changes  might  throw  him  out  of  employment  at  his  trade,  and 
reduce  him  to  a  mere  laborer.  He  might  die  from  other  causes, 
or  become  sick  or  dissipated.  He  might  marry,  and  have  to  strug- 
gle to  support  a  family  of  his  own,  or  he  might  weary  of  welldoing 
for  his  parents,  and  practically  cease  caring  for  them  any  further, 
however  well  able  to  do  so.  Other  contingencies  might  also  be 
suggested. 

Figuring  upon  all  the  probabilities,  it  seems  to  us  that  a  com- 
paratively small  sum  would  be  "a  fair  and  just  compensation''  for 
the  pecuniary  injury  to  the  parents.  But  the  amount  of  such  com- 
pensation is  not  for  us  to  determine.  The  statute  makes  the  jury 
the  judges  of  that  amount,  and  we  must,  and  do,  yield  much  respect 
to  their  judgment.  We  cannot  cut  down  their  award  to  what 
seems  to  us  fair  and  just.  We  can  only  cut  it  down  to  a  sum  which 
we  think  reasonable,  unbiased  men  will  concede  to  be  sufficient, — 
to  a  sum,  more  than  which  would  be  manifestly  excessive.  After 
much  reflection  and  conference,  we  fix  that  sum  at  $750,  though  a 
minority  think  that  too  much.  The  plaintiff  must  accept  that 
amount,  or  submit  to  a  new  trial. 

New  trial  granted  unless  plaintiff  will  remit  all  above  $750  within 
30  days  after  filing  of  the  rescript. 


V.  Same — Prospective  Inheritance  * 


DEMAREST  et  al.  v.  LITTLE. 

(Supreme  Court  of  New  Jersey,  18S5.    47  N.  J.  Law,  28.) 

MagiE,  J.''  This  action  was  brought  to  recover  damages  for  the 
death  of  plaintiff's  testator.  *  *  *  The  case  was  first  tried  in 
1883,  and  a  verdict  rendered  for  plaintiffs,  assessing  their  damages 
at  $30,000.  This  verdict  was  afterwards  set  aside  upon  a  rule  to 
show  cause.  *  =i=  *  The  case  has  been  again  tried,  and  the  ver- 
dict has  been  again  rendered  for  plaintiff's,  assessing  their  dam- 
ages at  $27,500.     *     *     * 

The  action  is  created  by  statute,  v/hich  supplies  the  sole  measure 
of  the  damages  recoverable  therein.  They  are  to  be  determined 
exclusively  by  reference  to  the  pecimiary  injury  resulting  to  the 
widow  and  next  of  kin  of  deceased  by  his  death.  The  injury  to  be 
thus  recovered  for  has  been  defined  by  this  court  to  be  "the  depriva- 

s  For  aiscussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  141. 
»  Part  of  the  oijinion  is  omitted. 


PUOSPKCTIVK    PKCUNIAKT  LOSSES— rKOSPECTlVE  INHERITANCE      250 

tion  of  a  reasonable  expectation  of  a  pecuniary  advantage  which 
would  have  resulted  by  a  continuance  of  the  life  of  deceased." 
Paulmier  v.  Railroad  Co.,  34  N.  J.  Law,  151.  Compensation  for 
such  deprivation  is  therefore  the  sole  measure  of  damage  in  such 
cases.     *     *     * 

Deceased  left  no  widow,  and  but  three  children.  All  of  them  had 
reached  maturity.  Two  sons  were  self-supporting;  the  daughter 
was  married.  He  owed  no  present  duty  of  support,  and  there  is 
nothing  to  show  any  fixed  allowance  or  even  casual  benefactions 
to  them.  They  are  therefore  deprived  of  no  immediate  pecuniary 
advantage  derivable  from  him.  At  his  death  he  was  in  business, 
in  partnership  with  his  sons  and  son-in-law.  All  the  partners  gave 
attention  to  the  business  and  the  capital  was  furnished  by  de- 
ceased. His  death  dissolved  the  partnership  and  deprived  the  sur- 
viving partners  of  such  benefit  as  they  had  derived  from  his  credit, 
capital,  skill  and  reputation.  But  the  injury  thus  resulting  is  not 
within  the  scope  of  this  statute,  which  gives  damages  for  injuries 
resulting  from  the  severance  of  a  relation  of  kinship  and  not  of 
contract.     No  damages  could  be  awarded  on  that  ground. 

Defendants  strenuously  urge  that,  outside  of  the  partnership  or 
in  the  event  of  its  dissolution,  the  next  of  kin  had  a  reasonable 
expectation  of  deriving  from  the  parental  relation  an  advantage 
by  way  of  services  rendered  or  counsel  given  by  deceased  in  their 
affairs.  A  claim  of  this  sort  must  be  carefully  restricted  within 
the  limits  of  the  statute.  The  counsels  of  a  father  may  in  a  moral 
point  of  view,  be  of  inestimable  value.  The  confidential  inter- 
course between  parent  and  child  may  be  prized  beyond  measure, 
and  its  deprivation  may  be  productive  of  the  keenest  pain.  But 
the  legislature  has  not  seen  fit  to  permit  recovery  for  such  injuries. 
It  has  restricted  recovery  to  the  pecuniary  injury;  that  is,  the  loss 
of  something  having  pecuniary  value. 

Now,  it  may  with  some  reason  be  anticipated  that  a  father,  out 
of  love  and  affection,  might,  if  circumstances  rendered  it  proper, 
perform  gratuitous  service  for  a  child,  which  by  rendering  unnec- 
essary the  employment  of  a  paid  servant,  would  be  of  pecuniary 
value,  and  that  he  might,  by  advice  in  respect  to  business  affairs, 
be  of  a  possible  pecuniary  benefit.  But  whether  such  an  anticipa- 
tion is  reasonable  or  not  must  depend  on  the  circumstances.  Con- 
sidering the  age,  the  assured  position,  the  business  and  other  rela- 
tions of  these  children,  it  is  obvious  that  the  probability  of  any  pe- 
cuniary advantage  to  accrue  to  them  in  these  modes  was  very 
small.  Indeed,  it  would  not  be  too  much  to  say  that  resort  must 
be  had  to  speculation  to  discover  any  such  advantage.  At  all 
events,  compensation  for  this  injury  in  this  case  could  not  exceed 
a  small  sum  without  being  excessive. 

The  principal  basis  for  plaintiff's  claim  is  (jbviously  this:    Th:il 
the  death  of  deceased  put  an  end  to  accumulations  which  he  niigliL 


2G0  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

have  thereafter  made  and  which  might  have  come  to  the  next  of 
kin.  Deceased  had  accumulated  about  $70,000,  all  of  which,  ex- 
cept $10,000  capital  invested  in  the  business,  seems  to  have  been 
placed  in  real  estate  and  securities  as  if  for  permanent  investment. 
By  his  will  the  bulk  of  his  property  was  given  to  his  children.  At 
his  death  he  had  no  other  sources  of  income  than  his  investments 
and  his  business. 

In  determining  the  probability  of  accumulations  by  deceased  if 
he  had  continued  in  life,  no  account  should  be  taken  of  the  income 
derivable  from  his  investments.  These  have  come  in  bulk  to  the 
children,  who  may,  if  they  choose,  accumulate  such  income.  A  dep- 
rivation of  the  probability  of  his  accumulating  therefrom  is  no 
pecuniary  injury.  On  the  contrary,  it  is  rather  a  benefit  to  them 
to  receive  at  once  the  whole  fund  in  lieu  of  the  mere  contingency  or 
probability  of  receiving  it,  though  with  its  accumulations  (at  best 
uncertain),  in  the  future.  Indeed,  the  benefit  thus  accruing  to  the 
next  of  kin  in  receiving  at  once  this  whole  property,  in  the  view  of  one 
of  the  court,  is  at  least  equivalent  to  the  present  value  of  the  prob- 
ability of  their  receiving  it  hereafter,  if  deceased  had  continued  in 
life,  with  all  his  probable  future  accumulations  from  any  source 
whatever,  in  which  case  it  is  evident  that  his  death  has  not  re- 
sulted in  any  pecuniary  injury  to  them.  But  without  adopting  this 
view  of  the  evidence,  it  is  plain  that  in  determining  probable  future 
accumulations  attention  should  be  restricted  to  such  as  would 
arise  from  the  labor  of  deceased  in  his  business.  His  receipts  from 
the  business  for  the  tw^o  years  it  had  been  conducted  were  proved. 
What  he  expected  was  not  proved,  but  left  to  be  inferred  from  his 
mode  of  life.  At  death  he  was  about  fifty-six  and  a  half  years  old, 
and  by  the  proofs  had  an  expectation  of  life  of  sixteen  and  seven- 
tenths  years. 

From  these  facts  the  jury  were  to  find  what  deceased  would  prob- 
ably have  accumulated,  what  probability  there  was  that  his  next  of 
kin  would  have  received  his  accumulations,  and  then  what  sum  in 
hand  would  compensate  them  for  being  deprived  of  that  probabili- 
ty. In  what  manner  the  jury  attempted  to  solve  this  problem  we 
cannot  ascertain.  Plaintiffs'  counsel  attempts  to  show  the  cor- 
rectness of  the  result  reached,  by  calculation.  He  assumes  the 
income  of  deceased  from  his  business  during  the  last  year  as  the 
annual  income  likely  to  be  obtained,  and  deducts  only  $1,000  each 
year  as  the  probable  expenditure  of  deceased,  and  then  finds  the 
present  worth  of  the  net  income  so  determined  for  the  deceased's 
expectation  of  life  is  $27,710.32. 

This  calculation  tests  the  propriety  of  this  verdict,  and  in  my 
judgment  conclusively  shows  that  it  w^as  rather  the  result  of 
sympathy  or  prejudice  than  a  fair  deduction  from  the  evidence. 
For,  assuming  the  amount  attributable  to  the  loss  of  deceased's 
services  was  but  small   (and  if  more  it  was  excessive),  the  award 


PROSPECTIVE    PECUNIARY  LOSSES — PROSPECTIVE  INHERITANCE      261 

of  the  jury  on  this  account  was  but  a  few  hundred  dolhirs  less  than 
the  present  worth  of  the  full  net  income  if  received  for  his  full  ex- 
pectancy of  life.  To  reach  such  a  result  the  jury  must  have  found 
every  one  of  the  following  contingencies  in  favor  of  the  next  of 
kin,  viz. :  That  deceased,  who  had  already  acquired  a  competence, 
would  have  continued  in  the  toil  of  business  for  his  full  expectancy 
of  life ;  that  he  would  have  retained  sufficient  health  of  body  and 
vigor  of  mind  to  enable  him  to  do  so,  and  as  successfully  as  before ; 
that  he  would  have  been  able  to  avoid  the  losses  incident  to  busi- 
ness, and  would  have  safely  invested  his  accumulations ;  and  that 
the  next  of  kin  would  have  received  such  accumulations  at  his 
death.  A  verdict  which  attributes  no  more  weight  than  this  has, 
to  the  probability  that  one  or  more  of  all  these  contingencies  Avould 
happen,  cannot  have  proceeded  from  a  fair  consideration  of  the 
case  made  by  the  evidence.     *     *     * 


DENVER  &  R.  G.  R.  CO.  v.  SPENCER. 

(Supreme  Court  of  Colorado,  1900.    27  Colo.  313,  61  Pac.  606,  51  L.  R.  A.  121.) 

Action  by  Henry  C.  Spencer  and  others  against  the  Denver  & 
Rio  Grande  Railroad  Company  to  recover  damages  for  the  death 
of  their  father,  caused  by  the  alleged  negligence  of  the  railroad 
company.     From  a  judgment  for  plaintiffs,  the  defendant  appeals. 

Gabbert,  J.io  *  *  *  The  final  question  relates  to  the  amount 
of  damages  assessed  by  the  jury.  The  verdict  was  in  the  sum  of 
$4,000,  which  appellant  contends  is  excessive.  The  right  of  appel- 
lees to  maintain  this  action  is  purely  statutory.  It  did  not  exist 
at  common  law.  The  damages  which  they  are  entitled  to  recover 
must  be  limited  to  those  of  a  compensatory  character — in  other 
words,  to  such  pecuniary  damages  as  they  have  sustained  by  reason 
of  the  death  of  their  father.  As  aptly  stated  by  the  late  Justice 
Elliott  in  Pierce  v.  Conners,  20  Colo.  'l78,  V  Pac.  721,  46  Am.  St 
Rep.  279:  "The  true  measure  of  compensatory  relief  in  an  action 
of  this  kind,  under  the  act  of  1877,  is  a  sum  equal  to  the  net  pecunia- 
ry benefit  which  plaintiff  might  reasonably  have  expected  to  re- 
ceive from  the  deceased  in  case  his  life  had  not  been  terminated  by 
the  wrongful  act,  neglect,  or  default  of  defendant;  -  *  *  but 
it  must  be  borne  in  mind  that  the  recovery  allowable  is  in  no  sense 
a  solatium  for  the  grief  of  the  living,  occasioned  by  the  death  of 
the  relative  or  friend,  however  dear.  It  is  only  for  the  pecuniary 
loss  resulting  to  the  living  party  entitled  to  sue,  resulting  from  the 
death  of  the  deceased,  tliat  the  statute  affords  compensation.  This 
may  seem  cold  and  mercenary,  but  it  is  unquestionably  the  law." 

At  the  time  of  his  death  his  wife  was  living,  and  survived  him 

10  Tart  of  the  oi>iiiiuii  Is  omiltcd  and  llie  staU'iin-iit  of  fart.s  is  rewi-ilten. 


262  DAMAGES  FOR  DEATH  BY  WROMGFUL  ACT 

about  two  years.  The  appellees  were  in  no  manner  dependent  up- 
on him  for  support.  The  mere  relationship  between  them  and 
deceased  cannot  be  made  the  basis  of  a  recovery  in  this  case,  how- 
ever much  they  may  have  grieved  over  his  untimely  death.  There- 
fore, as  stated  in  the  former  opinion  in  this  case,  "the  pecuniary 
loss,  if  any,  that  resulted  to  them  by  reason  of  the  death,  was  in 
being  deprived  of  their  share  of  the  money  that  he  might  accu- 
mulate during  his  expectancy  of  life."  Or,  under  the  evidence,  their 
recovery  must  be  limited  to  the  sum  which  the  father,  by  his  per- 
sonal exertions,  less  his  necessary  personal  expenses,  and  those  of 
his  wife  during  her  life,  would  have  added  to  his  estate,  and  which 
would  have  descended  to  the  appellees,  as  his  heirs  at  law.  The 
court  so  instructed  the  jury.     Was  this  instruction  followed? 

At  the  time  of  his  death,  deceased  was  upward  of  68  years  of 
age.  His  expectancy  of  life  was  about  QVo  years.  There  is  testi- 
mony to  the  effect  that  at  the  time  of  his  death  his  annual  income, 
arising  from  his  personal  exertions,  after  deducting  his  personal 
expenses,  equaled  the  sum  of  about  $1,000  per  annum,  although  the 
evidence  is  not  entirely  satisfactory  upon  this  point,  for  the  rea- 
son.that  the  witness  testifying  on  this  subject  was  not  certain  that 
he  was  fully  advised  regarding  the  personal  expenditures  of  the 
father.  The  money  earned  by  deceased  from  this  source  consisted 
of  a  salary  of  $1,500  per  annum  as  an  employe  of  a  bank,  and  about 
$500  more  per  annum,  earned  as  a  conveyancer  and  notary,  in  con- 
nection with  his  bank  duties.  He  had  considerable  income  from 
investments,  but  this  cannot  be  considered,  in  estimating  his  an- 
nual savings.  We  mention  this,  however,  because  it  appears  that 
his  net  worth  at  the  time  of  his  death  could  not  have  been  so  very 
much  in  excess  of  the  value  of  his  bank  stock,  which  was  $6,400. 
because  it  appears  that  his  other  investments  were  incumbered 
in  such  an  amount  that,  after  deducting  interest,  there  was  but  lit- 
tle left  in  the  way  of  income  from  these  sources,  after  payment  of 
taxes.  Had  he  lived  the  full  term  of  his  expectancy,  and  during 
that  period  been  able  at  all  times  to  continue  to  engage  in  the 
work  in  which  he  was  employed  at  the  time  of  his  death,  his  net 
personal  earnings  would  have  exceeded  much  more  than  the  dam- 
ages awarded.  It  cannot  be  fairly  assumed,  however,  or  expected, 
that,  at  his  advanced  age,  he  would  have  continued  to  labor  dur- 
ing all  the  future  years  of  his  life. 

In  considering  this  question,  account  should  be  taken  of  his  lia- 
bility to  illness,  his  incapability  of  further  exertions  by  reason  of 
age,  and  that  he  might,  on  account  of  his  years,  conclude  to  retire 
from  active  work;  that,  in  all  probability,  his  age  would  soon  in- 
capacitate him  from  discharging  his  duties  as  an  employe  in  the 
bank,  in  which  he  was  engaged;  that,  if  he  did  continue  to  earn 
money  for  a  portion  of  his  expectancy  of  life,  he  would  at  least  ex- 
p.-^.nd  a  part  so  earned  for  personal  use  during  the  remaining  years. 


NOMINAL   DAMAGES 


263 


All  these  are  contingencies  which  must  be  considered.  Necessa- 
rily, the  ascertainment  of  damages,  dependent  upon  a  variety  of 
circumstances  and  future  contingencies,  is  difficult  of  exact  com- 
putation ;  but,  nevertheless,  they  cannot  be  presumed  and  arbitra- 
rily given.  Undoubtedly  much  latitude  must  be  given  a  jury  in 
cases  of  this  character,  but  there  must  be  some  basis  of  facts  upon 
which  to  predicate  a  finding  of  substantial  pecuniary  loss.  Diebold 
V.  Sharpe,  19  Ind.  App.  474,  49  N.  E.  837.  Except  for  the  statute, 
appellees  could  not  maintain  this  action.  Its  provisions  are  be- 
neficent, but  limited.  In  no  case  under  it  can  damages  exceed  the 
sum  of  $5,000. 

Taking  into  consideration  the  evidence  upon  which  the  award 
of  damages  is  based  in  this  case,  the  contingencies  to  which  we 
have  directed  attention,  the  improbability  that  deceased,  during 
the  remaining  years  of  his  life,  would  have  saved  from  net  personal 
earnings  a  sum  anywhere  nearly  approximating  the  damages 
awarded,  and  the  disproportion  of  that  sum  to  his  previous  ac- 
cumulations, it  is  evident  that  the  jurors  certainly  failed  to  con- 
sider the  instructions  of  the  court  on  the  subject  of  damages,  but 
must  have  been  influenced  by  considerations  other  than  those  which 
the  law  recognizes  as  elements  of  damages  in  such  cases.  For 
these  reasons,  the  judgment  of  the  district  court  is  reversed,  and 
the  cause  remanded  for  a  new  trial.     Reversed  and  remanded. 


VI.  Nominal  Damages 


LAZELLE  V.  TOWN  OF  NEWFANE. 

(Supreme  Court  of  Vermont,  1S9S.    70  Vt.  440,  41  Atl.  511.) 

Case  by  L.  Z.  Lazelle  against  the  town  of  Newfane,  under  V.  S. 
§  2452,  for  damages  to  next  of  kin  resulting  from  the  death  of  plain- 
tiff's intestate,  caused  by  an  insufficiency  in  defendant's  highway. 
Judgment  for  defendant,  and  plain tiiT  excepted. 

The  plaintiff  excepted  to  the  defendant's  being  permitted  to  show 
the  amount  of  property  owned  by  the  intestate  and  the  next  of  kin, 
respectively,  at  the  time  of  the  former's  death ;  to  the  failure  of 
the  court  to  charge  that  the  jury  might  award  damages  for  the  loss 
of  the  society  of  the  deceased;  to  the  failure  to  charge  that  the  jury 
might  consider  the  special  damages  of  the  loss  of  the  services  of  a 
mother  to  a  son  and  his  family ;  and  to  the  failure  to  charge  that,  if 
the  defendant  is  primarily  liable,  the  plaintiff  is  entitled  to  at  least 
nominal   damages.     The  jury  were  instructed   lo  return  a  verdict 

11  For  discussion  of  iiriiiciplos,  see  Iliile  on  I);iiiia;;('S  (Ud  Kd.)  §  147. 


2G4  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

for  the  defendant  unless  they  found  that  the  next  of  kin  had  sus- 
tained actual  damages.  They  were  instructed  not  to  take  into  con- 
sideration any  pecuniary  benefit  which  the  next  of  kin  had  derived 
from  the  death  of  his  mother  by  reason  of  inheriting  her  property. 

Tyler,  J.^^  The  plaintiff's  evidence  tended  to  show  that  the 
intestate  was  a  widow  and  about  79  years  old ;  that  she  had  suf- 
fered an  injury  to  one  hip  many  years  before,  which  made  her 
slightly  lame ;  that  she  and  her  only  son  and  child,  Stillman  H., 
lived  in  different  tenements  in  the  house  situated  upon  a  farm 
which  tbey  owned  together ;  that  her  son  was  52  years  old,  had  a 
wife,  and  two  children,  9  and  15  years  old  respectively;  that  her 
son  and  his  wife  were  in  good  health ;  that  the  intestate  did  her 
own  work,  and  some  work  for  her  son's  family,  such  as  sewing  and 
mending,  and  occasionally,  in  the  absence  of  her  son's  wife,  got  the 
meals  for  the  family,  "and  did  such  other  work  about  her  son's 
household  and  for  his  family  as  a  woman  of  her  age,  condition  of 
health,  and  situation  would  naturally  do,  situated  as  the  family 
then  was." 

1.  At  common  law  all  actions  for  personal  injuries  died  with  the 
person  injured,  and  the  death  of  a  human  being  by  another's  wrong- 
ful act,  though  involving  pecuniary  loss,  afforded  no  ground  for  an 
action  for  damages  in  behalf  of  the  widow  or  next  of  kin.  Sher- 
man V.  Johnson,  58  Vt.  40,  2  Atl.  707;  Legg  v.  Britton,  64  Vt.  652, 
24  Atl.  1016.  Damages  for  the  death  of  a  person,  caused  by  the 
wrongful  act,  neglect,  or  default  of  another  person  or  a  corporation, 
are  recoverable  only  by  force  of  the  statute.  V.  S.  §  2451.  As 
was  said  by  the  court  in  Legg  v.  Britton  :  "Strictly,  it  is  a  new  right 
of  recovery,  arising  from  an  injury  to  the  intestate,  which  gave  or 
would  have  given  him  a  right  of  action  and  of  recovery  if  death  had 
not  ensued."  Section  2452,  in  express  terms,  limits  the  recovery 
to  the  pecuniary  injuries  resulting  from  such  death,  to  the  wife  and 
next  of  kin.  The  first  English  statute  that  gave  the  right  to  main- 
tain an  action  for  the  recovery  of  damages  for  the  wrongful  killing 
of  a  human  being  was  enacted  in  1846,  and  is  generally  known  as 
"Lord  Campbell's  Act."  9  &  10  Vict.  c.  93.  Our  own  statute  and  the 
statutes  of  many  of  the  other  American  states  have  provisions  similar 
to  those  contained  in  that  act.  While  the  statute  seems  capable  of  but 
one  construction,  it  has  been  several  times  before  the  court,  and 
it  has  been  held  that  pecuniary  loss  or  injury  was  the  limit  of  re- 
covery. Needham  v.  Railway  Co.,  38  Vt.  294;  Eames  v.  -Brattle- 
boro,  54  Vt.  471 ;  hegg  v.  Britton,  supra.  That,  in  estimating  the 
damages,  the  jury  are  confined  to  the  pecuniary  loss  sustained  by 
the  widow  or  next  of  kin,  and  cannot  take  into  consideration  their 
grief  and  mental  suft'ering,  nor  give  damages  by  way  of  solatium, 
is  well  stated  in  Railway  Co.  v.  Goodykoontz,  119  Ind.  Ill,  21  N. 

12  Part  of  the  opiuiou  is  omitted. 


NOMINAL    DAMAGES  265 

E.  472,  12  Am.  St.  Rep.  371,  and  is  supported  by  numerous  authori- 
ties cited  in  the  notes  to  that  case.     *     *     '•' 

But,  to  enable  the  jury  to  properly  estimate  the  pecuniary  in- 
jury, it  is  obviously  necessary  that  evidence  be  given  showing  the 
situation  and  circumstances  in  life  of  the  deceased,  his  age,  prob- 
able duration  of  life,  mental  and  physical  condition,  ability  and 
disposition  to  labor,  habits  of  industry  and  earning  power,  and  also 
the  amount  of  his  estate  as  bearing  upon  the  likelihood  of  his  be- 
coming a  charge  instead  of  being  an  assistance  if  he  had  lived. 
*  *  *  Human  lives  are  not  of  equal  pecuniary  value,  and  the 
value  of  services  rendered  depend?  upon  the  wants  of  the  bene- 
ficiary. Therefore  it  is  competent  to  show  the  situation  of  the  per- 
sons who  claim  to  have  been  so  injured,  and  the  occasion  for  and 
value  to  them  of  the  services  of  the  deceased.  The  death  of  the 
father  of  young  children  who  required  his  care  and  training  would 
be  a  greater  pecuniary  loss  to  them  than  the  death  of  a  father 
would  be  who  had  become  almost  wholly  dependent  upon  his  chil- 
dren for  his  maintenance.  So,  the  loss  of  a  husband  who  main- 
tained and  cared  for  his  wife  would  be  a  greater  pecuniary  loss 
to  her  than  if  he  were  indolent,  thriftless,  and  were  supported  by 
her.  In  Eames  v.  Brattleboro,  the  presiding  judge,  in  his  instruc- 
tions to  the  jury,  spoke  of  the  next  of  kin  as  of  tender  age,  and 
remarked  that,  "like  all  children  of  that  age,  they  need  the  care  and 
nurture  of  a  mother,  and  you  as  well  as  any  one  know  how  val- 
uable such  care  is  to  young  children.''  It  has  been  held  that  loss 
of  intellectual  and  moral  training  and  proper  nurture  by  a  child, 
and  loss  of  her  husband's  care  and  protection  by  a  widow,  are 
within  the  meaning  of  the  term  "pecuniary  loss.''  Tilley  v.  Rail- 
way Co.,  24  N.  Y.  471 ;  Id.,  29  N.  Y.  252,  86  Am.  Dec.  297;  Mc- 
Intyre  v.  Railway  Co.,  37  N.  Y.  287. 

In  the  case  at  bar  the  amount  of  pecuniary  assistance  which  the 
son  might  reasonably  have  expected  to  receive  from  his  mother  if 
she  had  lived  is  the  sole  ground  of  recovery;  and,  in  arriving  at 
that  amount,  the  jury  should  have  been  guided  by  the  rules  above 
stated.  The  exceptions  concisely  state  the  situation  of  mother  and 
son  with  reference  to  each  other ;  their  dependence  upon  each  oth- 
er, so  far  as  there  was  mutual  dependence;  the  mother's  physical 
condition,  ability,  and  disposition  to  perform  labor  for  her  son ;  and 
his  occasion  for  her  services  about  the  work  of  his  house,  the  care 
of  his  children,  or  otherwise.  In  view  of  the  pecuniary  benefit  she 
would  probably  have  been  to  him,  it  was  proper  to  consider  the 
likelihood,  at  her  age  and  in  her  condition  of  health,  of  her  requir- 
ing care  and  expense  from  her  son.  This  is  not  an  "offset,"  as  the 
])laintiff's  counsel  term  it,  but  an  estimate  of  the  pecuniary  dam- 
ages in  the  light  of  the  probabilities  of  the  intestate's  continued 
life,  health,  and  ability  to  render  her  son  i)ecuniary  assistance.  It 
was  clearly  admissible,  according  ti;  the  rules  above  staled,  to  show 


2G6  DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT 

the  amount  of  property  possessed  respectively  by  the  intestate  and 
her  son,  as  indicating  the  situation  and  circumstances  of  the  parties. 

The  supplemental  charge  of  the  court  was  a  concise  and  accurate 
statement  of  the  law  upon  the  subject  of  pecuniary  damages,  and 
complied  with  all  the  proper  requests  presented:  "In  considering 
the  question  of  damages — the  pecuniary  damages  of  Stillman  La- 
zelle,  by  reason  of  the  death  of  his  mother,  if  you  come  to  that 
question — you  are  to  take  into  consideration  the  relation  of  the 
mother,  in  her  life,  to  her  son,  the  way  they  lived  there  together, 
her  age,  her  physical  and  mental  condition,  the  means  which  she 
had  for  her  support,  the  probability  as  to  her  future  life  and  con- 
dition, what  under  the  circumstances  she  would  be  likely  to  do  of 
pecuniary  value  to  the  son,  and  what  under  the  circumstances  or 
probable  circumstances  of  the  future  he  would  be  likely,  in  the  or- 
dinary course  of  events,  to  do  for  her,  situated  as  they  were,  con- 
ditioned as  they  were  in  all  respects  as  disclosed  by  the  evidence ; 
and  the  pecuniary  damage  to  him  would  be  the  excess  of  the  pe- 
cuniary benefit  that  she  was  to  him  over  what  he  had  to  do  for  her; 
that  was  the  pecuniary  value  to  him.  You  are  to  consider  the 
mutual  relations  of  the  parties,  their  attitude  to  each  other,  and 
their  probable  course  of  conduct,  in  reference  to  doing  each  for 
the  other.  Now,  in  view  of  all  these  circumstances,  how  much, 
in  the  light  of  all  the  evidence,  do  you  find  was  the  pecuniary  loss 
to  him — how  much  less  is  he  worth  in  dollars  and  cents  by  reason 
of  her  death  than  he  would  have  been  had  she  lived?  That  is  the 
way  it  should  be  figured  out."  "The  relationship  and  situation 
of  the  parties"  fully  appeared  in  the  evidence,  and  was  properly 
commented  upon  by  the  court.  The  son's  loss  of  the  society  of 
his  mother  was  not  an  element  of  recovery,  nor  does  the  case  show 
any  special  or  peculiar  damages  arising  from  the  relation  between 
the  intestate  and  her  son. 

2.  The  plaintifif  contends  that  he  was  entitled  to  recover  at  least 
nominal  damages.  If  death  had  not  ensued,  and  the  intestate  would 
have  had  a  right  to  maintain  an  action  and  recover  damages  on 
account  of  the  wrongful  act,  neglect,  or  default  of  the  defendant, 
then,  death  having  ensued,  the  defendant  was  liable  to  this  action 
by  the  administrator,  in  behalf  of  the  son,  to  recover  such  damages 
as  were  just,  with  reference  to  the  pecuniary  injuries  resulting  to 
him  from  such  death.  In  a  certain  event  the  defendant  is  "liable 
to  an  action,"  and  in  that  action  the  plaintiff  may  recover  damages 
for  the  son's  pecuniary  damages  if  he  has  suffered  any.  But  sup- 
pose the  death  of  the  mother  relieved  the  son  from  a  great  burden 
of  care  and  expense,  so  that  he  was  pecuniarily  benefited,  rather 
than  injured;  is  he  still  to  have  nominal  damages?  We  think  that 
is  not  the  construction  to  be  given  the  statute.  On  the  contrary,. 
the  action  is  given  to  recover  damages  only  when  there  have  beea 
pecuniary  injuries. 


NOMINAL    DAMAGES 


2G7 


We  are  aware  that  this  construction  is  not  in  accordance  with  the 
cases  cited  on  the  plaintiff's  brief,  nor  with  the  general  current  of 
American  authorities.  In  Railway  Co.  v.  Shannon,  43  111.  338,  un- 
der a  like  statute,  it  was  held  that  where  a  person  has  met  with 
death  caused  by  the  wrongful  act,  neglect,  or  default  of  another, 
whenever  there  are  next  of  kin,  an  action  will  lie  for  the  recovery 
of  at  least  nominal  damages.  City  of  Chicago  v.  Scholten,  75  111. 
468.  The  same  is  held  in  the  New  York  cases  cited;  and  in  How- 
ard V.  Canal  Co.  (C.  C.)  40  Fed.  195,  6  L.  R.  A.  75,  the  court  said 
that,  as  the  plaintiff  was  entitled  to  recover,  he  was  entitled  to 
nominal  damages  at  least,  and  to  such  further  sum  as  is  proved, 
within  the  meaning  of  the  statute.  Thomp.  Neg.  §  1293,  says  that 
in  the  United  States,  in  such  a  case,  nominal  damages  may  be  giv- 
en, but  that  in  England  it  is  held  that,  when  there  is  no  proof  of 
actual  damages,  even  nominal  damages  are  not  allowed.  Some  of 
the  authorities  that  state  that  nominal  damages  are  recoverable  do 
not  distinguish  between  actions  brought  to  enforce  rights  of  the 
deceased  and  actions  brought  to  enforce  rights  given  by  the  stat- 
ute to  the  next  of  kin.  In  Duckworth  v.  Johnson,  4  Hurl.  &  N.  653, 
the  court  said :  "The  questions  are  whether  a  verdict  can  be  en- 
tered for  the  defendant,  on  the  ground  that  the  action  cannot  be 
maintained,  or  the  damages  reduced  to  a  nominal  amount,  on  the 
ground  that  there  was  a  right  of  action,  but  that  no  damage  was 
sustained.  My  opinion  is  that,  looking  at  the  act  of  parliament  (9 
&  10  Vict.),  if  there  was  no  damage,  the  action  is  not  maintainable. 
It  appears  to  me  that  it  was  intended  by  the  act  to  give  compen- 
sation for  damage  sustained,  and  not  to  enable  persons  to  sue  in 
respect  of  some  imaginary  damage  and  so  punish  those  who  are 
guilty  of  negligence,  by  making  them  pay  costs;  *  *  *  that 
an  action  cannot  be  maintained  by  the  representative  of  a  deceased 
person  without  proof  of  actual  damages  to  the  parties  on  whose 
behalf  the  action  is  brought.  The  mere  proof,  therefore,  of  the 
death  by  negligence,  does  not  entitle  the  executor  or  adminis- 
trator to  a  verdict  for  nominal  damages."  In  Boulter  v.  Webster, 
11  Law  T.  R.  (N.  S.)  598,  the  same  doctrine  was  held — that  there 
must  be  special  damages,  resulting  in  death  from  negligence,  and 
that  the  action  could  not  be  supported  to  recover  merely  nominal 
damages.     *     *     * 

As  damages  are  recoverable  only  by  force  of  the  statute  and 
as  compensation  for  pecuniary  injuries,  there  is  no  ground  upon 
which'  nominal  damages  can  rest.  It  is  a  forced  construction  of 
the  statute  to  hold  that  the  words,  in  section  2451,  "shall  be  liable 
to  an  action  for  damages,"  give  an  absolute  right  to  recover  nom- 
inal damages,  when  upon  trial  the  plaintiff  is  unable  to  ]>rove 
any  "pecuniary  injuries  resulting  from  such  death,  to  the  widow 
or  next  of  kin,"  as  required  by  the  following  section.  Judgment 
affirmed. 


268  WKOI^GS   AFFECTING    REAL   PUOPERTY 

WRONGS  AFFECTING  REAL  PROPERTY 
I.  Injuries  to  Real  Property — Trespasses  ^ 


OILMAN  V.  BROWN. 

(Supreme  Court  of  Wisconsin,  1902.  115  Wis.  1,  91  N.  W.  227.) 
Trespass  by  Charles  W.  Oilman  against  Orlando  Brown  for  the 
alleg-ed  willful,  malicious,  and  wanton  breaking  and  entering  of 
plaintiff's  close,  and  destroying  his  fence,  shade  trees,  and  shrub- 
beries. There  was  judgment  for  plaintiff  for  $325,  and  defendant 
appeals. 

Dodge,  J.2  *  *  *  The  actual  damages  claimed  by  plaintiff 
included  destruction  of  shade  and  fruit  trees,  berry  bushes,  and 
rhubarb  plants.  Evidence  was  admitted  to  prove  the  value  of  such 
things  while  in  position  as  parts  of  the  realty,  and  no  evidence 
was  given  of  the  diminished  value  of  the  land  by  reason  of  their 
destruction.  The  defendant  on  the  trial  substantially  conceded 
this  to  be  the  true  rule  and  method  of  ascertaining  damages,  and 
requested  no  instruction  to  the  jury  for  any  other  rule.  He  now, 
however,  contends  that  the  only  measure  of  damages  to  the  owner 
for  such  injuries  is  the  diminished  value  of  the  premises.  On  this 
question  the  views  of  the  courts  are  not  uniform.  In  New  York 
it  has  been  held  in  a  recent  case  (Dwight  v.  Railroad  Co.,  132  N. 
Y.  199,  30  N.  E.  398,  15  L.  R.  A.  612,  28  Am.  St.  Rep.  563)  that 
the  only  method  of  measuring  compensatory  damages  from  the 
destruction  of  fruit  and  shade  trees  not  valuable  after  their  sever- 
ance from  the  property  is  the  lessened  value  of  the  land  itself. 
That  case  is  not  in  accord  with  some  earlier  cases  in  New  York, 
but  may  perhaps  be  taken  as  settling  the  rule  in  that  state.  But 
a  dift'erent  view  has  been  taken  elsewhere,  and  it  has  often  been 
held  that,  while  that  method  was  open  to  a  plaintiff'  suffering  from 
a  wrongful  trespass,  it  was  also  open  to  him  to  oft'er  proof  of  the 
value  of  the  things  destroyed  to  the  real  estate  for  the  purposes 
of  occupancy.  That  view  is  declared  by  Sutherland  to  be  the 
better  one.  3  Suth.  Dam.  §  1019,  citing  Railroad  Co.  v.  Bohannon, 
85  Va.  293,  297,  7  S.  E.  236;  Montgomery  v.  Locke,  72  Cal.  75, 
77,  13  Pac.  401 ;  Mitchell  v.  Billingsley,  17  Ala.  391,  393 ;  Wallace 
V.  Goodall,  18  N.  H.  439;  Whitbeck  v.  Railroad  Co.,  36  Barb.  (N. 
Y.)  644;   Folsom  v.  River  Co.,  41  Wis.  602,  608. 

The  question  has  never  been  fully  considered  by  this  court,  but 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §§  153,  154. 

2  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewritten. 


INJURIES   TO    REAL    PKOPEUTT— TRESPASSES  2G9 

in  Andrews  v.  Youmans,  82  Wis.  81,  52  N.  W.  23,  the  latter  method 
was  adopted  and  passed  without  criticism,  the  judgment  being 
affirmed  on  appeal.  We  think  such  rule  the  safe  and  proper  one. 
It  must  not  be  forgotten  that  recovery  in  trespass  is  always  based 
upon  a  wrongful  invasion  of  the  plaintiff's  'rights,  and  that  the 
rule  of  damages  adopted  should  be  such  as  to  more  carefully  guard 
against  failure  of  compensation  to  the  injured  party  than  against 
possible  overcharge  upon  the  wrongdoer.  An  owner  of  real  es- 
tate has  a  right  to  enjoy  it  according  to  his  own  taste  and  wishes, 
and  the  arrangement  of  buildings,  shade  trees,  fruit  trees,  and  the 
like  may  be  very  important  to  him,  may  be  the  result  of  large  ex- 
pense, and  the  modification  thereof  may  be  an  injury  to  his  con- 
venience and  comfort  in  the  use  of  his  premises  which  fairly  ought 
to  be  substantially  compensated,  and  yet  the  arrangement  so  se- 
lected by  him  might  be  no  considerable  enhancement  of  the  sale 
value  of'  the  premises,  it  might  not  meet  the  taste  of  others,  and 
the  disturbance  of  that  arrangement,  therefore,  might  not  impair 
the  general  market  value.  Hence  it  is  apparent  that  while  the 
owner  may  be  deprived  of  something  valuable  to  him,  for  which 
he  would  be  willing  to  pay  substantial  sums  of  money  or  which 
might  have  cost  him  substantial  sums,  yet  he  might  be  wholly  un- 
able to  prove  any  considerable  damages  merely  in  the  form  of  de- 
preciation of  the  market  value  of  the  land.  The  owner  of  prop- 
erty has  a  right  to  hold  it  for  his  own  use  as  well  as  to  hold  it 
for  sale,  and  if  he  has  elected  the  former  he  should  be  compensated 
for  an  injury  wrongfully  done  him  in  that  respect,  although  that 
injury  might  be  unappreciable  to  one  holding  the  same  premises 
for  purposes  of  sale.  The  case  at  bar  presents  an  illustration. 
Amongst  the  shade  trees  claimed  to  have  been  destroyed  was  a 
well-grown  willow  tree,  furnishing  shelter  from  the  weather  and 
from  the  sun's  rays.  The  plaintiff  had  erected  his  barn  and  ar- 
ranged his  barnyards  so  as  to  avail  himself  of  this  protection,  and 
the  defendant  himself  testified  that,  while  the  destruction  of  that 
tree  would  not  impair  the  selling  price  of  the  lots,  it  would  sub- 
stantially interfere  with  the  comfort  and  convenience  of  the  plain- 
tiff in  the  use  of  the  barn  and  in  caring  for  his  domestic  animals. 
No  error  was  committed  in  admitting  the  proof  complained  of. 

We  cannot  sustain  the  appellant's  contention  that  error  was 
committed  by  submitting  the  question  of  punitory  damages  to 
the  jury.  Defendant  knew  of  plaintiff's  claim  to  the  land,  and 
there  was  evidence  which,  if  believed  by  the  jury,  fully  warranted 
an  inference  of  such  degree  of  wantonness  in  the  trespass,  if  not 
of  actual  malicious  injury,  as  justifies  the  imposition  of  exemplary 
damages.  The  question  of  such  damages  being  in  the  case,  of 
course  \nooi  of  defenrlant's  financial  con(liti(jn  was  proper,  as  also 
an  instruction  that  the  jury  might  jiroperly  consider  it  in  fixing  the 
amount.     *     *     *     Judgmenl   affirmed. 


270  WRONGS   AFFECTING   REAL   PROPERTY 


II.  Contracts  to  Sell  Real  Property— Breach  by  Vendor' 


NEPPACH  V.  OREGON  &  C.  R.  CO. 

(Supreme  Court  of  Oregon,  1905.     46  Or.  374,  80  Pac.  4S2.) 
Action  by  Anthony  Neppach  against  the  Oregon  &  California 
Railroad  Company  for  breach  of  contract  for  the  sale  of  land.    The 
plaintiff  had  judgment  for  $47,000,  and  defendant  appeals. 

Bean,  J.*  *  *  *  The  remaining  question  involves  the  com- 
petency of  evidence  given  by  some  of  the  witnesses  as  to  the  value 
of  the  timber  growing  on  the  land  which  the  defendant  contracted 
and  agreed  to  sell  to  plaintiff  and  Himpel,  and  the  proper  measure 
of  damages  for  the  breach  of  the  contract.  It  is  the  law  that  the 
value  of  real  estate  cannot  be  shown  by  proving  the  value  of  the 
several  constituent  elements  of  value,  and  then  adding  these  to- 
gether, taking  the  aggregate  amount  as  the  value  of  the  whole. 
It  would  manifestly  not  be  proper,  as  Mr.  Justice  Cooley  remarks, 
to  say  that  "a  thousand  timber  trees  upon  it  are  worth  so  much, 
a  hill  of  gravel  so  much,  a  deposit  of  valuable  clay  so  much,  and 
when  these  are  all  removed  the  land  is  still  worth  so  much  for 
agricultural  purposes.  Consequently,  as  it  is,  it  is  worth  the  ag- 
gregate of  all  these  sums."  Page  v.  Wells,  37  Mich.  415,  422. 
Such  an  estimate  of  value  would  be  unfair  and  misleading,  and 
would  introduce  into  the  case  speculative  and  uncertain  questions, 
and  would  detract  from  the  real  question  involved,  which  is,  what 
is  the  market  value  of  the  land  as  it  is?  A  witness  called  to  testify 
as  to  the  value  of  land  can  take  into  account  everything  which 
goes  to  make  up  the  value,  but  he  must  confine  his  testimony  to 
the  market  value  of  the  land  as  a  whole,  and  not  to  its  several 
parts.  A  witness,  however,  who  has  given  an  opinion  of  value, 
may  be  asked  on  his  examination  in  chief  to  state  the  grounds 
of  his  opinion.  2  Sutherland,  Dam.  (3d  Ed.)  §  450;  Haslam  v. 
Galena  &  So.  Wis.  R.  Co.,  64  III.  353.  And  this  is  the  rule  adopted 
and  adhered  to  by  the  trial  court. 

The  court  ruled  that  the  value  of  the  land  in  question  could 
not  be  ascertained  from  the  estimated  stumpage  value  of  the  tim- 
ber growing  thereon,  but  that  a  witness  who  had  given  an  opinion 
as  to  the  market  value  of  the  land  might  state  the  facts  upon  which 
such  opinion  was  based,  which  in  this  case  involved  the  character 
and  value  of  the  timber.  The  witnesses  were  first  asked  to  give 
their  opinions  as  to  the  market  value  of  the  land,  and,  after  they 

3  For  disc-ussion  of  principles,  see  Hale  on  Damages  (2cl  Ed.)  §  159. 

*  Part  of  the  opinion  is  omitted  and  the  stiitement  of  facts  is  rewritten. 


CONTRACTS  TO  SELL  REAL  PROPERTY — BREACH  BY  VENDOR    271 

liad  done  so,  were  permitted  to  state  the  amount  and  value  of 
the  stumpage  as  showing  upon  what  they  based  their  opinions; 
and  this  they  had  a  right  to  do  under  the  law,  as  we  understand 
it.  The  court  instructed  the  jury  that  the  measure  of  damages 
in  this  case  would  be  the  market  value  of  the  land  at  the  time  of 
the  breach  of  the  contract,  less  the  amount  of  the  unpaid  purchase 
price. 

Mr.  Warvelle  says,  in  speaking  on  the  subject  of  the  measure 
of  damages  in  an  action  by  a  vendee  against  a  vendor  for  the 
breach  of  a  contract  to  convey  real  estate:  "The  rule  is  well  es- 
tablished that  where  the  vendor  has  title,  and  for  any  reason  re- 
fuses to  convey  it,  as  required  by  the  terms  of  the  agreement, 
he  shall  respond  in  damages,  and  make  good  to  the  vendee  what- 
ever he  may  have  lost  by  reason  of  the  breach.  So  far  as  money 
can  do  it,  the  vendee  must  be  placed  in  the  same  situation  with 
regard  to  damages  as  if  the  contract  had  been  specifically  per- 
formed :  and  the  measure  of  such  damages  will  ordinarily  be  the 
difference  between  the  contract  price  and  the  value  of  the  property 
at  the  time  of  the  breach.  This  has  always  been  regarded  as  the 
true  measure  of  damages  in  actions  on  contracts  for  the  future 
delivery  of  marketable  commodities,  and  it  makes  no  difference 
in  principle  whether  the  contract  be  for  the  sale  of  real  or  personal 
property.  In  both  instances  the  vendee  is  entitled  to  have  the 
thing  agreed  for  at  the  contract  price,  and  to  sell  it  himself  at  its 
increased  value,  and  if  it  be  withheld  the  vendor  should  make  good 
to  him  the  difference."  2  Warvelle,  Vendors  (2d  Ed.)  §  936.  Mr. 
Sedgwick  and  Mr.  Sutherland  lay  down  the  same  rule.  3  Sedg. 
Dam.  (8th  Ed.)  §  1012;  2  Suth.  Dam.  (3d  Ed.)  §§  578,  579.  And 
so  are  the  authorities.    29  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  724. 

Where  a  vendor  acting  in  good  faith  and  without  knowledge  of 
a  defect  in  his  title  agrees  to  sell  and  convey  land,  and  is  unable 
to  do  so  because  of  a  failure  of  title,  or  if,  upon  discovery  of  such 
defect,  he  refuses  further  to  perform  or  to  be  bound  by  the  con- 
tract, leaving  the  vendee  to  his  action  for  damages,  there  is  some 
conflict  in  the  authorities  as  to  whether  the  vendee  can  recover 
anything  moie  than  the  amount  paid,  with  interest.  No  such  case, 
however,  is  presented  here.  The  defendant  knew,  or  was  charge- 
able with  knowledge,  at  the  time  the  contract  was  made,  of  the 
condition  of  its  title,  and  that  the  land  which  it  agreed  to  sell 
to  the  plaintiff  and  Himpel  was  included  in  the  limits  of  a  prior 
grant  to  the  Northern  Pacific  Railroad  Company.  It  did  not  at 
any  time,  attempt  to  repudiate  or  rescind  the  contract  on  account 
of  the  controversy  about  the  title,  or  decline  to  be  bound  further 
thereby  on  that  account,  but,  on  the  contrary,  induced  the  vendees 
to  make  an  agreement  or  contract  with  it  for  its  benefit,  ayd  upon 
which  they  relied  and  acted,  to  postpone  performance  until  the 
title  was  settled.     It  does  not  plead  a  want  of  title  as  a  defense 


272  WRONGS   AFFECTING    REAL   PROPERTY 

or  in  mitigation  of  damages,  but  avers  that  it  has  selected  the 
lands  and  filed  lists  thereof  in  the  local  land  office,  which  have 
been  approved,  and  "has  duly  complied  with  the  terms  of  such  act 
of  Congress  as  aforesaid,  and  is  entitled  to  patents  as  aforesaid." 
It  therefore,  for  the  purposes  of  this  case  and  under  the  pleadings, 
occupies  the  same  situation  as  a  vendor  who  has  title  to  land  but 
refuses  to  convey. 

In  such  case  the  authorities  are  that  the  vendee  may  recover 
for  the  loss  of  his  bargain,  and  that  the  measure  of  damages  is 
the  value  of  the  land  agreed  to  be  conveyed  at  the  time  of  the 
breach,  less  the  amount,  if  any,  of  the  purchase  price  unpaid. 
This  was  the  rule  adopted  by  the  trial  court.  There  being  no  error 
in  the  record,  the  judgment  is  afifirmed. 


III.  Same — Breach  by  Vendee  * 


HOGAN  V.  KYLE. 

(Supreme  Court  of  Washington,  1894.     7  Wash.  595,  35  Pac.  399,  38  Am.  St. 

Rep.  910.) 

Action  by  F.  V.  Hogan  against  George  F.  Kyle  for  breach  of 
contract  to  buy  real  estate.  There  was  judgment  for  plaintiff  for 
the  unpaid  balance  of  the  purchase  price,  and  defendant  appeals. 

Dunbar,  C.  J.e  *  *  *  The  judgment  in  this  case  will  have 
to  be  reversed,  in  any  event,  for  under  its  terms  the  respondent  re- 
covers the  full  purchase  price,  and  is  allowed  to  retain  the  land 
which  represented  the  purchase  price.  In  this  case  these  are  de- 
pendent obligations  upon  which  the  respondent  is  suing.  When 
the  first  installment  became  due,  he  could  have  recovered  the 
amount  then  due  as  upon  an  independent  contract;  but  having 
elected  to  wait  until  the  last  installment  became  due,  and  upon 
the  payment  of  which  defendant  would  be  entitled  to  a  deed,  the 
obligations  become  dependent.  They  all  relate  back  to  the  con- 
tract, and  appellant  cannot  sustain  an  action  for  either  installment 
without  proof  of  performance  or  readiness  to  perform  on  his  part. 
McCroskey  v.  Ladd,  96  Cal.  455,  31  Pac.  558,  and  cases  cited.  In 
that  case  the  court  said :  "There  is  but  one  single  cause  of  action 
— one  and  indivisible.  The  defendant,  if  he  would  maintain  his 
deed,  must  pay  all ;  and  the  plaintiff,  if  he  would  recover,  must 
show  such  a  performance  on  his  part  as  would  entitle  him  to  all 
the  unpaid   consideration."     It  is  not  enough   that  the   deed  was 

• 
0  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  160. 
6  Tart  of  the  opinion  is  omitted  and  the  statement  of  facts  rewritten. 


CONTUACTS  TO  SELL  REAL  riiOPERTY — BREACH  liY  VENDEE        27:? 

tendered  at  any  particular  time,  but  the  tender  must  be  kept  good 
so  that  it  may  be  taken  into  consideration  in  the  entry  of  the  judg- 
ment. 

Plaintiff  here  simply  shows  that  the  tender  had  been  made  prior 
to  the  commencement  of  the  action,  and  it  is  therefore  insufficient 
excepting  on  the  theory  that  the  judgment  could  be  rendered  in- 
dependently of  the  performance  of  his  part  of  the  contract  by  the 
vendor,  which  would  result  in  allowing  the  vendor  to  keep  both 
the  money  and  the  land.  On  that  proposition  we  quote  from  War- 
velle  on  Vendors,  (page  961 :)  "There  are  cases,  both  in  England 
and  the  United  States,  where,  on  the  vendee's  default,  the  vendor, 
having  offered  to  perform,  has  been  permitted  to  recover  as  dam- 
ages the  whole  purchase  price.  The  injustice  of  such  a  measure, 
however,  is  apparent  on  its  face,  for  it  gives  the  vendor  his  land, 
as  well  as  its  value,  and  is  not  now  regarded  as  a  correct  rule  in 
either  country."  The  rule  in  such  cases  is  that  the  vendor  has 
a  right  to  the  fruits  of  his  bargain,  and  is  entitled  to  compensation 
for  any  loss  he  may  suffer  by  reason  of  its  nonconsummation. 
What  his  damages  are,  in  such  circumstances,  must  be  alleged  and 
proven,  like  any  other  fact  in  the  case.  Under  one  set  of  circum- 
stances, the  measure  of  damages  might  be  one  thing,  and  under 
other  circumstances  the  measure  might  be  governed  by  an  entirely 
different  rule.  The  land  may  have  deteriorated  in  value,  and  his 
damages  would  be  great,  or  it  might  have  increased  in  value,  and 
the  damages  would  be  nominal. 

As  is  well  argued  by  the  appellant  in  this  case,  so  far  as  the 
complaint  reveals,  the  land  may  be  worth  as  much  or  more  than 
it  was  when  the  agreement  was  executed ;  and  the  respondent, 
having  received  an  advance  payment,  which  is  forfeited,  may  ac- 
tually be  benefited.  The  cases  cited  in  Warvelle  fully  sustain  the 
announcement  in  the  text,  both  as  to  the  unfairness  of  allowing 
the  vendor  to  retain  the  land  and  the  money,  and  as  to  the  measure 
of  damages.  In  Railroad  Co.  v.  Evans,  6  Gray  (Mass.)  25,  66  Am. 
Dec.  394,  it  was  held  that,  in  an  action  at  law  by  the  vendor  to 
recover  damages  for  the  breach  of  a  contract  for  the  sale  of  land, 
the  measure  of  damages  is  not  the  contract  price,  but  the  differ- 
ence between  that  price  and  the  price  for  which  the  land  could 
have  been  sold  at  the  time  of  the  breach.  Under  this  rule,  which 
seems  to  us  to  be  an  equitable  one,  and  one  which  is  adopted  by 
many  courts,  the  complaint  is  plainly  deficient.  *  ♦  *  Judg- 
ment reversed. 

COOLEY  DAif. — 18 


274  BREACH    OF   MAKKIAGE   PROMISE 

BREACH  OF  MARRIAGE  PROMISE 
I.  Compensatory  Damages  *■ 


OSMUN  V.  WINTERS. 

(Supreme  Court  of  Oregon,  1894.    25  Or.  2G0,  35  Pac.  250.) 

Action  by  May  Osmun  against  H.  D.  Winters  for  breach  of 
promise  of  marriage.  The  plaintiff  alleged  the  promise  and  the 
breach  thereof  and  seduction  by  the  defendant  under  the  promise. 
There  was  verdict  and  judgment  for  plaintiff  for  $10,500,  and  de- 
fendant appeals. 

Bean,  J.2  *  *  *  'Xhe  first  question  arises  upon  the  following 
instruction :  "This  is  an  action  for  a  breach  of  promise  of  mar- 
riage, and  although  there  has  been  a  good  deal  of  evidence  intro- 
duced here  bearing  upon  the  question  of  seduction,  which  is  set 
up  in  the  pleadings  in  the  case,  you  must  not  consider  seduction 
as  the  principal  element  in  the  case.  All  that  can  be  claimed  for 
or  gained  by  the  charge  of  seduction  in  these  pleadings  is  an  ag- 
gravation of  damages,  and  you  have  nothing  to  do  with  that  ques- 
tion unless  you  first  find  that  there  was  a  promise  of  marriage, 
and  that  the  promise  was  broken.  The  defendant  denies  that  there 
was  any  seduction.  The  plaintiff  alleges  that  there  was  a  seduc- 
tion. And  before  you  can  make  any  use  of  that  matter  of  seduc- 
tion in  determining  the  case,  you  must  find  the  fact  that  there 
was  a  seduction  substantially  as  alleged.  And  then,  if  you  find 
from  the  whole  matter — the  whole  case — that  the  promise  of  mar- 
riage was  made,  and  justification  for  breaking  off  the  promise  has 
not  been  proven,  and  that  there  was  seduction,  then  you  must 
consider  the  seduction  as  well  as  the  allegations  of  justification 
for  refusing  to  carry  out  the  promise  of  marriage,  in  assessing  the 
damages."  To  all  that  portion  of  this  instruction  relating  to  se- 
duction, and  directing  the  jury  to  consider  the  same  as  an  element 
of  damages,  the  defendant  excepted,  and  now  assigns  the  same  as 
error.  Several  objections  are  made  to  this  instruction,  and  of  these 
in  their  order. 

First,  It  is  contended  that  there  is  no  sufficient  allegation  in  the 
complaint  of  seduction  under  a  promise  of  marriage ;  but  in  this 
contention  we  are  unable  to  agree  with  counsel.  It  seems  to  us 
that  by  a  fair  construction  of  the  complaint  it  is  averred. that  the 
alleged  seduction  was  under  a  promise  of  marriage. 

1  For  discussion  of  principles,  see  Hale  on  Damages  (2d  Ed.)  §  IGG. 

2  Part  of  the  opinion  is  omitted  and  the  statement  of  facts  is  rewi-itten. 


COMrENSATORY   DAMAGES  ^»0 

It  is  next  contended  that  seduction  cannot  be  alleged  and  proved 
as  an  element  of  damages  in  an  action  for  a  breach  of  a  promise 
of  marriage.  Upon  this  question  there  is  some  slight  conflict  in 
the  books,  but  the  decided  current  of  authority,  both  in  this  coun- 
try and  England,  is  that,  while  damages  for  seduction,  as  a  distinct 
ground  of  action,  cannot  be  added  to  the  damages  which  plaintiff 
is  entitled  to  recover  for  a  breach  of  the  promise  to  marry,  it  may, 
if  alleged,  be  shown  in  aggravation  of  damages,  on  the  ground 
that  compensation  for  the  injury  she  has  received  by  the  breach 
of  the  contract  cannot  be  justly  estimated  without  taking  into 
consideration  the  increased  humiliation  and  distress  to  which  she 
has  been  exposed  by  the  defendant's  conduct.  The  action  is  nom- 
inally for  a  breach  of  contract,  but  the  damages  are  awarded  upon 
principles  more  commonly  applicable  to  actions  of  tort;  and,  if 
seduction  is  brought  about  by  a  reliance  upon  the  contract,  it  may 
in  no  very  indirect  way  be  said  to  be  a  breach  of  its  implied  condi- 
tions. "Such  an  engagement,"  says  J\lr.  Justice  Campbell,  "brings 
the  parties  necessarily  into  very  intimate  and  confidential  relations, 
and  the  advantage  taken  of  those  relations  by  the  seducer  is  as 
plain  a  breach  of  trust  in  all  its  essential  features  as  any  advantage 
gained  by  a  trustee  or  guardian  or  confidential  adviser,  who  cheats 
a  confiding  ward  or  beneficiary  or  client  into  a  losing  bargain.  It 
only  differs  from  ordinary  breaches  of  trust  in  being  more  heinous. 
A  subsequent  refusal  to  marry  the  person  whose  confidence  has 
been  thus  deceived  cannot  fail  to  be  aggravated  in  fact  by  the 
seduction.  The  contract  is  twice  broken.  The  result  of  an  or- 
dinary breach  of  promise  is  the  loss  of  the  alliance,  and  the  morti- 
fication and  pain  consequent  on  the  rejection.  But  in  case  of  se- 
duction there  is  added  to  this  a  loss  of  character  and  social  posi- 
tion, and  not  only  deeper  shame  and  sorrow,  but  a  darkened  future. 
All  of  these  spring  directly  and  naturally  from  the  broken  obliga- 
tion. The  contract  involves  protection  and  respect,  as  well  as  af- 
fection, and  is  violated  by  the  seduction  as  it  is  by  the  refusal  to 
marry,  A  subsequent  marriage  condones  the  first  wrong,  but  a 
refusal  to  marry  makes  the  seduction  a  very  grievous  element  of 
injury,  that  cannot  be  lost  sight  of  in  any  view  of  justice."  Shea- 
han  V.  Barry,  27  Mich.  219.  The  common-law  practice  is  substan- 
tially uniform  in  admitting  such  evidence,  and  is,  we  think,  based 
upon  sound  princijjlcs.  3  Suth.  Dam.  316;  Cooley,  Torts,  510;  1 
Bish.  Mar.  &  Div.  §  232;  Hattin  v.  Chapman,  46  Conn.  607;  Sauer 
V.  Schulcnberg,  33  Md.  28<S,  3  Am.  Rep.  174;  Kniffen  v.  McCon- 
nell,  30  N.  Y.  285;  Sherman  v.  Rawson,  102  Mass.  395;  Kelley  v. 
Riley,  106  Mass.  339,  8  Am.  Rep.  336;  note  to  Weaver  v.  Bachert, 
44  Am.  Dec.  178;  Berry  v.  Da  Costa,  L.  R.  1  C.  P.  331;  Milling- 
ton  v.  Loring,  6  Q.  B.  Div.  190. 

But  it  is  claimed  that,  our  statute  (section  36)  having  given  a 
woman  over  21  years  of  age  a  right  of  action  for  her  own  seduc- 


276  BREACH    OF   MARRIAGE    PROMISE 

tion.  the  reason  of  the  old  rule  has  ceased,  and  it  ought  not  to 
prevail  in  this  state;  and  this  would  seem  to  be  the  opinion  of 
Mr.  Parsons,  for  he  says:  "By  the  strict  rules  of  the  law  they 
[damages  for  seduction]  should,  we  think,  be  excluded  where  the 
plaintiff  was  in  actual  or  constructive  service,  or  lived  in  a  state 
in  which  the  statute  law  gave  her  an  action  for  seduction,  and 
not  otherwise;  and  the  weight  of  authority  seems  to  be  so."  But 
he  seems  to  think  that,  while  the  strict  rules  of  law  would  exclude 
the  evidence  as  irrelevant,  it  would  be  impracticable  to  keep  the 
fact  of  seduction  from  the  jury  Avithout  excluding  other  evidence 
to  which  the  plaintiff  would  be  entitled;  and,  when  once  admitted, 
the  jury  would  probably  regard  it  in  estimating  damages,  and  the 
courts  would  seldom  disturb  the  verdict  on  that  ground.  2  Pars. 
Cont.  70.  No  authorities  are  cited  by  Air.  Parsons  in  support  of 
his  view,  and  we  believe  none  can  be  found  in  the  adjudged  cases. 
On  the  contrary,  where  the  question  has  arisen  in  states  giving 
the  woman  a  right  to  maintain  an  action  for  her  own  seduction, 
it  has  uniformly  been  held  that  the  rule  of  the  common  law  is 
unchanged  by  the  statute,  and  that  seduction  may  be  alleged  and 
proved  in  an  action  for  breach  of  a  promise  of  marriage.  Thus, 
in  Michigan,  the  statute  authorizes  an  action  for  seduction  to  be 
brought  by  any  relative  of  full  age,  who  may  be  selected  by  the 
woman ;  and  in  Sheahan  v.  Barry,  supra.  Air.  Justice  Campbell, 
answering  a  contention  similar  to  the  one  made  in  this  case,  and 
assuming  that  the  damages  recovered  in  an  action  brought  under 
the  statute  belong  to  the  woman,  says :  "There  are  two  considera- 
tions in  the  way  of  holding  the  rule  changed  by  our  statute.  If 
it  gives  a  remedy  to  the  woman  herself,  it  should,  on  common  law 
principles,  be  regarded  as  a  cumulative  remedy — so  far  as  the  se- 
duction under  promise  of  marriage  is  concerned — -rather  than  as 
superseding  the  old  one.  And  it  is  better  for  all  parties,  and  more 
consonant  with  public  policy,  that,  where  justice  can  be  fully  ac- 
complished in  one  suit,  no  one  should  be  driven  to  begin  more 
than  one;  and  where  this  rule  is  respected  there  can  be  no  danger 
of  injustice  by  a  second  prosecution.  The  maxim  that  no  one  shall 
be  twice  vexed  for  the  same  cause  of  action  will  ahvays  prevent 
any  plaintiff  from  suing  twice  for  the  same  damages.  If  they  can 
be  recovered  in  this  action  under  the  pleadings,  a  recovery  in  this 
will  necessarily  be  a  bar  to  any  future  action.  This  subject  was 
recently  considered  in  the  case  of  Leonard  v.  Pope,  27  Mich.  145." 
So,  also,  in  Raymond  v.  Saucer,  84  Ind.  3,  11,  it  was  held,  under 
a  statute  like  ours,  that  seduction  could  be  considered  as  an  ele- 
'  ment  of  damages  in  an  action  for  a  breach  of  promise,  Air.  Justice 
Woods  saying:  "The  fact  that  seduction  accomplished  under  some 
circumstances  is  a  crime  is  no  reason  why  it  may  not  be  the  sub- 
ject of  a  civil  action;  and  if,  instead  of  making  a  separate  cause 
of  action,  the  injured  party  chooses  to  plead  it  as  a  cause  for  ag- 


COMrEXSATORY   DAMAGES  277 

gravation  of  damages  in  a  suit  for  a  breach  of  the  promise  of 
marriage  under  which  it  was  accomplished,  there  is  no  good  rea- 
son why  it  may  not  be  done." 

Several  of  the  other  states  contain  similar  statutory  provisions, 
but  we  have  not  been  able  to  find  a  single  case  in  which  it  has 
been  held  that  evidence  of  seduction  in  an  action  for  breach  of 
promise  of  marriage  is  not  admissible  on  that  ground.  The  rule 
allowing  seduction  to  be  alleged  and  proven  in  such  an  action  is 
but  a  rule  of  damages  based  upon  the  theory  that  a  plaintiff  is 
entitled  to  compensation  for  mental  suffering,  injury  to  reputation, 
loss  of  virtue,  and  the  shame  and  disgrace  caused  by  defendant's 
conduct,  and  ought  not  to  be  varied  because  of  the  possibility  of 
another  action.  And  from  the  Michigan  and  Indiana  cases  it  would 
seem  that  if  a  plaintiff  chooses  to  allege  and  prove  seduction  in 
an  action  for  breach  of  promise  in  aggravation  of  damages  the 
judgment  in  such  action  would  be  a  bar  to  a  further  action  by 
the  woman  under  the  statute  for  her  own  seduction.     *     *     * 

It  is  also  claimed  that  the  court  erred  in  instructing  the  jury 
that  if  they  found  from  the  evidence  that  the  promise  of  marriage 
was  made,  and  justification  for  breaking  off  the  promise  had  not 
been  proven,  and  that  there  was  seduction,  then  they  must  con- 
sider the  seduction  in  assessing  the  damages.  In  actions  of  this 
character  the  question  of  damages  belongs  exclusively  to  the  jury, 
subject,  of  course,  to  the  power  of  the  court  to  set  aside  the  ver- 
dict if  against  the  evidence,  or  when  excessive  damages  are  al- 
lowed. There  are  no  hard  or  fast  rules  by  which  the  amount  can 
be  determined.  Each  case  must  be  dealt  with  according  to  its 
own  particular  circumstances.  While  seduction  under  a  promise 
of  marriage  may  be  alleged  and  proven  in  aggravation  of  dam- 
ages, yet  it  is  for  the  jury  alone  to  determine  what  weight,  if  any, 
is  to  be  given  to  such  testimony,  and  what  eft'ect  it  will  have  in 
determining  the  amount  of  damages  to  which  plaintiff  is  entitled. 
That  portion  of  the  instruction  complained  of  deprived  the  jury, 
in  case  they  found  the  facts  referred  to,  of  all  discretion  upon  the 
question  as  to  whether  they  should  consider  the  seduction  in  as- 
sessing damages.  They  were  told  that  in  that  event  they  must 
so  consider  it.  Such  we  do  not  understand  to  be  the  law.  In  an 
ordinary  action  for  a  breach  of  contract  the  amount  recovered  is 
limited  to  the  actual  damages  caused  by  the  breach. 

To  this  rule  there  is  an  exception  in  an  action  for  breach  of 
promise  of  marriage,  because,  although  founded  on  contract,  it  is 
regarded  as  being  somewhat  in  the  nature  of  an  action  founded 
upon  tort ;  but  the  cases  sustaining  the  exception  go  no  further 
than  to  hold  that  it  should  be  left  to  the  good  judgment  and  dis- 
cretion of  the  jury  whether  or  not  there  should  be  added  to  the 
damages  naturally  resulting  from  a  brcacli  of  the  contract  any- 
thing on   account  of   seduction   accomplished   under   the   promise. 


278  BREACH    OF   MAraJIAGE   PROMISE 

In  the  case  of  Jacobs  v.  Sire,  4  Misc.  Rep.  398,  23  N.  Y.  Supp.  1063, 
in  an  action  for  a  breach  of  promise  of  marriage,  the  court  in- 
structed the  jury  that  if  they  beHeved  from  the  testimony  the  de- 
fendant had  purposely  and  maHciously  wronged  the  plaintiif,  they 
were  bound  to  give  what  are  called  "exemplary  damages ;"  but  the 
court  held  this  instruction  error,  upon  the  ground  that  it  deprived 
the  jury  of  all  discretion  upon  the  question  whether  exemplary 
damages  should  or  should  not  be  given.  The  court  said:  "Sedg- 
wick and  other  text  writers  on  damages  agree  upon  the  proposi- 
tion that,  where  there  is  evidence  of  circumstances  sufficient  tO' 
uphold  a  verdict  for  exemplary  damages,  the  question  whether  they 
shall  be  given  or  not  is  one  for  the  jury;  and  it  is  erroneous  to 
instruct  the  jury  to  give  exemplary  damages,  for  the  plaintiff  can 
never  recover  them  as  a  matter  of  law." 

So,  in  this  case,  we  think  it  was  error  for  the  court  to  instruct 
the  jury  that  if  they  found  a  promise  was  made,  and  there  was  no 
justification  for  the  breach,  and  that  seduction  occurred,  they  must 
consider  the  seduction  as  an  element  in  estimating  the  damages ; 
and  under  the  evidence  we  cannot  say  that  it  was  harmless  error. 
From  plaintiff's  own  testimony  it  appears  that  she  was  not  inex- 
perienced in  the  ways  of  the  world,  but  was  of  mature  years,  had 
been  married,  and  became  engaged  to  the  defendant,  who  is  an  old 
man,  within  two  weeks  after  her  first  acquaintance  with  him ;  that 
she  left  the  home  of  her  aunt  and  uncle,  where  she  was  living,  and 
went  to  defendant's  rooms,  where- she  claims  to  have  been  seduced, 
and  lived  with  him  as  his  "promised  wife"  for  some  time  before 
the  alleged  seduction  took  place,  and  continued  to  live  with  him 
afterwards  without  complaint ;  and  that  the  alleged  seduction  was 
not  disclosed  to  any  person,  or  known  by  any  one  except  the  par- 
ties, until  the  plaintiff  consulted  counsel  for  the  purpose  of  bring- 
ing this  action. 

Under  these  circumstances  it  was  prejudicial  error  to  tell  the 
jury  that  if  they  found  the  seduction  they  must  consider  it  in  esti- 
mating the  damages.  It  should  have  been  left  to  the  sound  judg- 
ment and  discretion  of  the  jury,  under  all  the  circumstances  of  the 
case,  with  the  direction  that  they  should  exercise  their  own  judg- 
ment, and  consider  the  seduction  or  not,  as  to  them  might  seem 
just  and  proper.     *     *     *     Judgment  reversed. 


EXEMPLARY    DAMAGES  279 


II.  Exemplary  Damages  • 


CHELLIS  V.  CHAPMAN. 

<Court  of  Appeals  of  New  York,  1S91.    125  N.  Y.  214,  26  N.  E.  308.  11  L.  R.  A. 

784.) 

Gr.\y,  J.*  This  plaintiff  has  recovered  a  verdict  for  $8,000,  as 
damages  for  the  breach  by  defendant  of  his  promise  to  marry  her. 
The  proofs  abundantly  justified  the  jury  in  finding  as  they  did, 
but  the  defendant  insists  that  the  trial  judge  erred  in  his  rulmgs 
upon,  the  evidence,  and  in  his  charge.  He  does  not  raise  any  ques- 
tion about  the  fact  of  his  agreement  to  marry  the  plaintiff  *  *  * 
but  he  thinks  his  case  was  prejudiced  by  the  admission  of  certam 
■evidence,  and  by  the  way  in  which  the  trial  judge  submitted  the 
question  of  the  damages  to  the  consideration  of  the  jury,  and  that 
he  should,  therefore,  have  a  new  trial.  *  *  *  Evidence  of  the 
defendant's  general  reputation  as  to  wealth,  at  the  time  of  the 
agreement  of  marriage,  was  admitted  against  the  objection  to  its 
competency  upon  the  subject  of  damages  in  such  an  action.  The 
exception  to  its  admission  presents  an  interesting  question,  and 
one  which  may  be  deemed  not  altogether  free  from  difficulty.  Such 
evidence,  on  first  consideration,  seems  to  conflict  with  the  general 
rule  that  in  actions  for  a  breach  of  contract  evidence  as  to  the  de- 
fendant's wealth  is  inadmissible.  The  plaintiff,  in  such  actions, 
is  entitled  to  recover  only  those  damages  which  she  may  prove 
that  she  has  suffered  in  consequence  of  the  defendant's  failure  to 
perform  on  his  part.  The  defendant's  solvency,  or  insolvency,  has 
nothing  to  do  with  the  issue,  and  furnishes  no  measure  for  the 
computation  of  damages.  And  this  rule  of"  exclusion  as  to  such 
evidence  has  been  also  applied  to  cases  where  damages  are  sought 
to  be  recovered  for  seduction,  or  for  criminal  conversation.  James 
V.  Biddington,  6  Car.  &  P.  589;   Dain  v.  Wycoff,  7  N.  Y.  191.  *  *  * 

The  principle  underlying  the  exclusion  of  this  kind  of  evidence, 
in  the  latter  class  of  cases,  is  that  vindictive  or  punitive  damages 
would  be  improper,  as  the  recovery  in  them  should  be  confined 
to  what  the  jury  may  deem  to  be  a  sufficient  compensation  for 
the  injury  sustained  by  the  plaintiff.  But  the  present  action  is 
quite  other  in  its  nature,  and  constitutes  an  exception  to  that  gen- 
eral rule  upon  the  subject  of  damages  for  violation  of  contract  ob- 
ligations which  has  been  assented  to  by  the- judges  of  the  courts 
in  this  country  and  in  England.  It  is  apparent  that,  in  such  an 
action  as  this,  there  can  be  no  hard  and  fast  rule  of  damages,  and 

3  Far  discussion  of  priiicirtlos,  see  Hale  on  Dainages  (2(1  Kd.)  §  1G7. 
■»  I'art  of  Uio  oiiiiiion  is  oiiiKli'd. 


2S0  BREACH    OF   MARRIAGE    PROxAlISE 

that  they  must  be  left  to  the  discretion  of  the  jury.  Of  course, 
that  discretion  is  not  so  absolute  as  to  be  independent  of  a  con- 
sideration of  the  evidence.  It  is  one  which  is  to  be  exercised  with 
regard  to  all  the  circumstances  of  the  particular  case,  and,  as  it 
has  frequently  been  said,  where  the  verdict  has  not  been  influenced 
by  prejudice,  passion,  or  corruption,  the  verdict  will  not  be  dis- 
turbed by  the  court.  That  the  amount  of  the  suitor's  pecuniary 
means  is  a  factor  of  some  importance  in  the  case  of  a  demand  of 
marriage  cannot  fairly  be  denied.  It  is  a  circumstance  which  very 
frequently  must  have  its  particular  influence  upon  the  mind  of  the 
woman  in  determining  the  question  of  consent  or  of  refusal;  and, 
as  I  think,  in  a  proper  case,  very  naturally  and  properly  so.  The 
ability  of  the  man  to  support  her  in  comfort,  and  the  station  in 
life  which  marriage  with  him  holds  forth,  are  matters  which  may 
be  weighed  in  connection  with  an  agreement  to  marry. 

In  the  case  at  bar  the  plaintiff  was  47  years  of  age,  and  the  de- 
fendant 74.  Six  years  previously  he  had  sought  her  acquaintance, 
unsolicited  by  her,  and  with  matrimonial  views  on  his  part.  He 
had  visited  her  more  or  less  frequently,  and  had  twice  proposed 
marriage  before  their  engagement  in  1886.  She  was  and  had  been 
supporting  herself  as  a  teacher  and  superintendent  in  city  schools. 
He  had  never  been  married,  and  had  lived  in  the  country  as  a 
farmer.  He  was  possessed  of  pecuniary  means,  considerable  in 
amount  in  the  general  estimation  of  his  neighbors,  and  not  incon^ 
siderable  if  we  take  his  own  estimate.  Though  pretending  to  some 
cultivation  of  mind,  which,  among  other  ways,  if  we  may  judge 
from  this  record,  he  seemed  to  delight  in  displaying  by  a  versifica- 
tion of  the  homely  though  not  very  inspiring  or  romantic  topics 
and  events  of  his  farm  life  and  surroundings,  he  yet  was  seemingly 
lacking  in  those  outward  graces  of  the  person  which  are  not  in- 
frequently deemed  a  substitute  for  more  solid  possessions.  Nor 
does  he  seem  to  have  had  recourse  to  the  adventitious  aids  of  the 
wardrobe  to  adorn  his  exterior  person,  and  thereby  to  compensate 
for  personal  shortcomings.  I  think  that  the  jury  should  be  made 
aware  of  all  the  circumstances  which  in  this  case,  and  in  every 
such  case,  might  be  supposed  to  have  presented  themselves  to  the 
mind  of  the  plaintiff  when  asked  to  change  her  position  by  mar- 
riage. Of  these  circumstances,  the  home  offered,  which  for  its 
comforts  and  ease  would  depend  upon  the  more  or  less  ample 
pecuniary  means  of  the  defendant,  the  freedom  from  the  personal 
exertions  for  daily  support,  the  social  position  accompanying  the 
marriage,  all  these  are  facts  which  have  their  proper  bearing  upon 
the  question  of  marriage.  The  wealth  and  the  reputation  for 
wealth  of  a  man  are  matters  which,  as  this  world  is  constituted, 
often  aid  in  determining  his  social  position,  notwithstanding  he 
may  have  other  and  more  intelligible  rights  to  it,  and  despite  obj- 
jectionable  characteristics  or  traits.     Where,  therefore,  the  defend- 


EXEMPLARY    DAMAGES 


2S1 


ant  has  demanded  an  engagement  of  marriage,  it  seems  proper 
enough  that  the  jury  should  know  what  possible  reinforcement 
his  suit  may  have  had,  and  what  were  the  inducements  ofifered  by 
his  social  standing  and  surroundings.     *     *     * 

I  apprehend,  however,  that  the  difficulty,  in   the   question  be- 
fore us,  of  the  evidence,  is  not  so  much  in  adducing  proof  as  to 
defendant's  pecuniary  means,  as  in  the  mode  of  their  proof.     But 
assuming,  as  I  think  we  are  bound  to  do  under  the  authorities, 
that  the  amount  of  defendant's  property  is  material  in  such  an  ac- 
tion, then  evidence  of  the  reputation  which  he  enjoys  for  wealth 
is  unobjectionable.     Reputation  is  the  common  knowledge  of  the 
community,  and,  if  it  is  exaggerated  or  incorrect,  the  defendant 
has  the  opportunity  to  correct  it,  and  of  giving  the  exact  facts 
upon  the  trial.     The  admission  of  the  evidence  is  not  to  establish 
an  ability  to  pay,  but  to  show  the  social  standing  which  defend- 
ant's means  did,  or  might,  command.    In  Kniffen  v.  McConnell,  30 
N.  Y.  289,  which  was  an  action  for  a  breach  of  promise  of  mar- 
riage. Judge  Ingraham,  delivering  the  opinion  of  the  court,  held 
that  "it  may  be  objectionable  to  particularize  the  defendant's  prop- 
erty, and  such  evidence  should  be  confined  to  general  reputation 
as  to  the  circumstances  of  the  defendant.     To  that  extent  I  think 
it  admissible."     The  learned  judge  does  not  reason  upon  the  rule, 
but  I  am  not  aware  that  this  decision  has  ever  been  questioned, 
and  I  do  not  think  it  well  can  be.    In  Kerfoot  v.  Marsden,  2  Post. 
&  F.  160,  an  action  for  breach  of  promise  of  marriage,  in  1860, 
Wilde,  B.,  ruled:    "You  may  ask  in  a  general  way  as  to  the  de- 
fendant's property,  but  you  cannot  go  into  particular  items  as  to 
his  property."     I  think  we  must  conclude  upon  authority,  as  well 
as  upon  the  reason  of  the  thing,  that  evidence  of  the  reputation 
of  the  defendant  as  to  wealth  is  admissible  in  these  cases.     The 
belief  of  the  plaintiff  must  have  been  influenced  by  the  opinions 
or  beliefs  of  the  members  of  the  community  in  which  the  defend- 
ant resided.     She  could  not  be  presumed  to  have  personal  cogni- 
zance of  a  matter,  which  is  so  peculiarly  one  within  the  individual's 
exclusive  knowledge,  and  what  credence  she  gave  to  general  re- 
port was  not  without  justification.     She  had  some  right  to  rely 
upon  it.     The  action  is  intended  as  an  indemnity  for  the  temporal 
loss  which  the  plaintifif  has  sustained,  and  that  embraces  the  mor- 
tification  to  the   feelings,   the   wounded  pride,  and  all  the   disap- 
pointments from  the  failure  of  the  marriage,  as  well  in  the  losses 
it  has  occasioned  as  in  the  blow  to  the  afi'ections. 

The.  appellant  insists  upon  the  error  of  the  trial  judge  in  sub- 
mitting to  the  jury  the  question  of  exemplary  damages.  But  we 
think,  in  such  a  case,  that  it  is  the  province  of  the  jury  to  deter- 
mine upo-n  the  proof  of  the  facts  and  of  the  surrounding  circum- 
stances what  damages  should  be  awarded.  If  the  conduct  of  the 
defendant  in  violating  his  ijroniisc  is  characterized  by  a  disregard 


-82  BREACH  OF  MARRIAGE  PROMISE 

of  the  plaintiff's  feelings  or  reputation ;  if  he  has  placed  her  or 
induced  her  to  place  herself,  in  a  false  position,  or  to  forego  tem- 
poral advantages ;  if  the  breach  of  his  promise  is  unjustifiable ;  if 
he  spreads  upon  the  records  matters  in  defense  of  the  action  which 
are  scandalous,  and  tend  to  reflect  discredit  upon  the  plaintiff,  or 
to  stain  her  reputation — then  these  are  all  circumstances  which 
may  be  considered  by  the  jury,  and  may  be  availed  of  by  them 
to  enhance  the  damages.  Here  the  trial  judge  did  not  say  in  his 
charge  that  this  was  a  case  for  the  infliction  of  punitive  damages. 
He  instructed  the  jury,  in  substance,  that  if  the  plaintiff  was  en- 
titled to  damages  they  should  certainly  give  compensatory  dam- 
ages, and  that,  in  the  exercise  of  a  discretion  based  on  the  proofs 
and  circumstances  of  the  case,  they  might  award  exemplary  or 
punitive  damages.  Upon  this  subject,  of  when  such  damages  might 
be  awarded,  he  read  at  length  from  the  opinions  of  this  court  in 
Thorn  v.  Knapp,  42  N.  Y.  474,  1  Am.  Rep.  561,  and  Johnson  v. 
Jenkins,  24  N.  Y.  252,  for  the  purpose  of  showing  the  rule  to  be 
applied.  It  is  clear  that  he  left  it  to  them  to  arrive  at  a  decision 
upon  the  propriety  of  giving  exemplary  damages  from  a  considera- 
tion of  the  defendant's  motives  and  conduct.  Now,  there  was  evi- 
dence in  the  case  upon  which  a  verdict  might  well  include  exem- 
plary damages.  The  wedding  day  was  agreed  upon,  the  usual 
preparations  were  made  by  the  plaintiff,  and  relatives  and  guests 
were  bidden  to  the  ceremony.  But  the  defendant  did  not  appear. 
He  alleged  physical  ailments  in  excuse  of  not  fulfilling  his  marital 
engagement,  but  there  was  evidence  that  he  was  evading  it,  and 
shamming  illness.  He  admits  that  he  had  no  fault  to  find  with 
her.  She  had  resigned  her  position  to  marry  him.  He  denies  re- 
questing her  to  do  so ;  but  his  attempt  at  denial  is  weakened  by 
his  subsequent  admission  that  he  expected  her  to  do  it.  Then,  in 
his  pleading,  he  charges  the  plaintiff  with  having  no  affection  for 
him,  but  with  entertaining  a  purpose  to  procure  money  from  him, 
on  the  pretense  of  his  promise  to  marry  her,  and  his  breach  there- 
of. These  were  elements  in  the  case  which  might  properly  enter 
into  the  decision  of  the  jury  as  to  the  amount  of  damages.  *  *  h= 
Judgment  affirmed. 


WBST  PUBLISHING  CO.,  PRINTERS,   ST.  PAUL,  MINN. 


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